Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 127

FSCO A14-000254

BETWEEN:

AHMED ATTIA

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

Before: Arbitrator Alan G. Smith

Heard: In person at ADR Chambers on March 16, 2016

Appearances: Mr. Ahmed Attia did not participate Ms. Jessica Abramovitch participated for Belair Insurance Company Inc.

Issues:

The Applicant, Mr. Ahmed Attia, was injured in a motor vehicle accident on April 28, 2011 and sought accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Mr. Attia, through his 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 Belair entitled to its expenses in preparing for and attending the Arbitration proceedings from Mr. Attia, and if so, in what amount?

Result:

The Applicant’s Application for Arbitration is dismissed.
Belair is entitled to its expenses in the amount of $3,871.03.

EVIDENCE AND ANALYSIS:

Background

A Pre-Hearing conference with regard to this Application was held on March 19, 2015. Subsequent to the Pre-Hearing discussions, a Pre-Hearing letter was issued, scheduling an Arbitration Hearing for February 10, 11 and 12, 2016.

On January 11, 2016, an Order was issued removing Mr. Richard Seawright and Grillo Barristers Professional Corporation as the Applicant’s counsel of record, due to their inability to contact Mr. Attia. Also on January 11, 2016, a supplementary letter was sent via Canada Post to Mr. Attia advising him of the removal of counsel as well as reminding him of the scheduled Arbitration Hearing dates.

Neither Mr. Attia nor a representative appeared on the scheduled Arbitration Hearing date of February 10, 2016 at 10:00 a.m. I, the Insurer’s counsel and representative waited until 10:30 a.m. The Applicant did not contact ADR Chambers to explain his absence. As a result, a further letter was prepared and sent to the Applicant by both registered and regular mail on February 10, 2016, advising Mr. Attia of the following:

RE-SCHEDULED ARBITRATION HEARING:

A re-scheduled arbitration hearing in this case is scheduled for March 16, 2016, at 2:00 p.m. at the offices of ADR Chambers at 4101 Yonge Street, 6th Floor, Toronto Ontario, M2P 1N6 OR counsel for the insurer will participate via teleconference. Belair has been advised not to prepare for a contested hearing on this matter.

ATTENTION MR. ATTIA:

In the event that you attend on the above 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 you do not attend, as noted above, the hearing may proceed in your absence. Your Application for arbitration may be dismissed and Belair’s expenses of the arbitration proceeding may be awarded against you.

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 Mr. Attia nor a representative attended on the re-scheduled Hearing date of March 16, 2016. The Applicant did not contact ADR Chambers and no submissions were received by ADR Chambers from Mr. Attia. As a result, Belair asked that I dismiss the Application and award expenses for its time wasted in defending the Application.

Analysis

Dismissal of the Application for Arbitration

I am satisfied that the Applicant has been properly notified of all proceedings to date, including the proceedings scheduled for February 10, 2016 and March 16, 2016. I am also satisfied that the Applicant was properly notified that his failure to participate in the proceedings would result in Belair bringing a motion to dismiss his Application for Arbitration.

The Applicant has the onus of proof to establish his entitlement to accident benefits under his Application for Arbitration, and his failure to attend and participate accordingly means that he has failed to meet this onus. I find that given Mr. Attia’s failure to participate in this process and the resulting impossibility of success of his Application for Arbitration, Belair is entitled to an order dismissing the accident benefit claims filed by Mr. Attia.

I am relying on section 23 of the Statutory Powers Procedure Act² which grants adjudicators, including Arbitrators, a wide power, including dismissal, to control the process and prevent an abuse of that process. Moreover, Mr. Attia bears the onus of proving entitlement to the claimed benefits. He did not appear at the Hearing and no evidence was presented to support his claims. Therefore, I find all of the above reasons are sufficient to dismiss the Application for Arbitration.

EXPENSES:

I received a detailed written Bill of Costs from the Insurer with an explanation of the time spent with regard to defending the Application for Arbitration. Belair claims a total of 34.5 hours were spent defending the Application. Counsel, Alex Dirlis, claims 7.75 hours at the applicable Legal Aid Rate of $122.78 per hour for a total of $951.55. Counsel, Jessica Abramovitch, claims 26.75 hours at the applicable Legal Aid Rate of $109.14 per hour for a total of $2,919.48. I find Belair’s claims reasonable, particularly since the matter was to proceed to a Hearing on its merits starting February 10, 2016, and Applicant’s counsel was only removed from the record on January 11, 2016. I am therefore satisfied that the Insurer should be awarded expenses in the amount of $3,871.03 in costs thrown away having to defend the Application for Arbitration. This quantum includes all applicable taxes. The amount is payable forthwith by Mr. Attia. In making this award, I have considered Rules 75.2 and 78(1) of the Dispute Resolution Practice Code and found that Mr. Attia has prolonged and hindered the Arbitration process by abandoning the Application.

April 25, 2016

Alan G. Smith Arbitrator

Date