Rozina Hussain v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2016 ONFSCDRS 126

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 126

FSCO A13-010929

BETWEEN:

ROZINA HUSSAIN

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

REASONS FOR DECISION

Before: Arbitrator Alan G. Smith

Heard: In person at ADR Chambers on April 13, 2016

Appearances: Ms. Rozina Hussain did not participate

Mr. Geoffrey H. Yu participated for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Ms. Rozina Hussain, was injured in a motor vehicle accident on January 12, 2012, and sought accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Hussain, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Should the Applicant’s Application for Arbitration be dismissed?
Is Security National entitled to its expenses in preparing for and attending the Arbitration proceedings from Ms. Hussain and, if so, in what amount?

Result:

The Applicant’s Application for Arbitration is dismissed.
Security National is entitled to expenses in the amount of $4,592.83.

EVIDENCE AND ANALYSIS:

Background

Subsequent to an initial Pre-Hearing conference held on February 9, 2015, Arbitration Hearing dates of April 12, 13 and 14, 2016 were set.

A resumed Pre-Hearing conference was convened on May 13, 2015, at which time a Preliminary Issue Hearing was scheduled for February 2, 2016. The Preliminary Issue Hearing was to determine whether the Application should be stayed given Ms. Hussain’s non-attendance at medical examinations requested by the Insurer pursuant to s. 44 of the Schedule. Ms. Hussain was present at the resumed Pre-Hearing conference on May 13, 2015, and hence was aware of the February 2, 2016 Preliminary Issue Hearing.

A further resumed Pre-Hearing conference took place on September 10, 2015.

Counsel for the Applicant, Mr. Luis Quail, subsequently made a motion to be removed as counsel of record. On consent of the parties, the Preliminary Issue Hearing was therefore adjourned sine die and the Motion Hearing proceeded on February 2, 2016. Mr. Yu, counsel, represented Security National. Mr. Quail, counsel, represented Ms. Hussain. The Applicant did not attend, nor did she notify her counsel or ADR Chambers regarding her absence. Mr. Quail advised that he had been in contact with the Applicant via telephone in January 2016 and that she had stated that she was now residing in Pakistan and was not returning to Canada. Mr. Quail further advised that he had been unable to obtain instructions from his client.

Subsequent to the Motion, I issued a supplementary letter, a copy being sent to the Applicant’s email address supplied by Mr. Quail. In the letter, I removed Mr. Quail and his firm, Ryan Naimark Professional Corporation as representatives of record. Also in that letter, the on-the-merits Arbitration Hearing dates starting April 12, 2016, were vacated and Ms. Hussain was advised of the following:

Attention Ms. Hussain:

Mr. Quail is no longer representing you in this matter. As you did not participate in today’s discussion and your representative was not able to obtain instructions, ADR Chambers is unsure whether you will be proceeding forward as a self-represented claimant, whether you have a new representative, or you wish your Application closed.

The arbitration hearing in this case is now scheduled for 10:00 a.m. April 13, 2016, at the offices of ADR Chambers at 4101 Yonge Street, 6th Floor, Toronto Ontario, M2P 1N6. Counsel for Security National will participate via teleconference.

Security National has been advised not to prepare for a contested hearing on this matter. In the event that the applicant attends on that date, with or without representation, the hearing will not proceed and the appointment will be converted into a resumption of the pre-hearing discussion. However, in the event that applicant does not attend, as noted above, the hearing may proceed in her absence. The applicant’s Application for arbitration may be dismissed and the insurance company’s expenses of the arbitration proceeding may be awarded against her.

Where notice of hearing has been sent to a party and a party does not attend, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice of the proceeding.

This letter shall serve as sufficient notice of hearing.

Neither Ms. Hussain nor a representative attended on the re-scheduled Hearing date of April 13, 2016, or at any time thereafter. The Applicant has not contacted ADR Chambers and no submissions were received by ADR Chambers from Ms. Hussain. As a result, Security National asks that I dismiss the Application for Arbitration and award expenses for its time wasted in defending the Application.

Analysis

Dismissal of the Application for Arbitration

I am satisfied that the Applicant had been properly notified of all proceedings to date, including the Preliminary Issue Hearing scheduled for February 2, 2016 and the Hearing scheduled for April 13, 2016. I am also satisfied that the Applicant was properly notified that her failure to participate in the proceedings would result in Security National bringing a motion to dismiss her Application for Arbitration and request an Order for costs.

Section 23 of the Statutory Powers Procedure Act² grants Arbitrators a wide power, including dismissal, to control the Arbitration process and prevent an abuse of that process. Moreover, the Applicant in an Arbitration Hearing has the onus of proof to establish his/her entitlement to accident benefits claimed in her Application for Arbitration, and failure to attend and participate accordingly means that the Applicant has failed to meet this onus. I find that given Ms. Hussain’s failure to participate in this Hearing process and the resulting impossibility of success of her Application for Arbitration, Security National is entitled to an order dismissing the accident benefit claims filed by Ms. Hussain.

EXPENSES:

I received a detailed written Bill of Costs from the Insurer with an explanation of the time spent with regard the Application. Security National claims a total of 38 hours were spent defending the Application. Counsel, Geoffrey Yu, claims 29 hours at the applicable Legal Aid Rate of $109.94 per hour for a total of $3,188.26. Student-at-Law, Joseph Filice, claims 6 hours at the applicable Legal Aid Rate of $64.74 per hour for a total of $388.44. Law clerk, Yalda Aslamzada, claims 5 hours at the applicable Legal Aid Rate of $32.37 per hour for a total of $161.85. Insurer’s counsel also claims $325.90 for disbursements and $528.38 for HST.

I find Security National’s claims reasonable, particularly since the matter was to proceed to a Hearing on its merits starting April 12, 2016, with that date only being vacated on February 2, 2016. The Insurer also prepared and attended three Pre-Hearing conferences and prepared and attended for both a Motion to stay the Application and a Motion to have the Application dismissed with costs. I am therefore satisfied that the Insurer should be awarded expenses in the amount of $4,592.83 in costs thrown away having to defend the Application for Arbitration. This quantum includes all applicable taxes. The amount is payable forthwith by Ms. Hussain. In making this award, I have considered Rules 75.2 and 78(1) of the Dispute Resolution Practice Code and found that Ms. Hussain has prolonged and hindered the Arbitration process by abandoning the Application.

April 25, 2016

Alan G. Smith

Arbitrator

Date