Neutral Citation: 2016 ONFSCDRS 138 FSCO A14-005991

BETWEEN:

SIVASRITHARAN PATHMANATHAN Applicant

and

UNIFUND ASSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Richard Quan Heard: March 30, 2016 at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Mr. Ramnik Makkar for Mr. Pathmanathan Ms. Melissa Ragogna for Unifund Assurance Company

Issues:

The Applicant, Mr. Sivasritharan Pathmanathan, was injured in a motor vehicle accident on September 28, 2012. He applied for statutory accident benefits from Unifund Assurance Company, ("Unifund"), payable under the Schedule.¹ Disputes arose between Mr. Pathmanathan and Unifund concerning his entitlement to accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Pathmanathan applied for arbitration at the Financial Services Commission of Ontario, ("FSCO"), under the Insurance Act,² by way of Application for Arbitration dated July 18, 2014.

The issues in this hearing are:

Is Mr. Pathmanathan entitled to a medical benefit for physical treatment from a Treatment and Assessment Plan dated January 2, 2013 in the amount of $1,135.20 and for psychological treatment from a Treatment and Assessment Plan dated March 15, 2013 in the amount of $1,963.72?
Is Unifund liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Pathmanathan?
Is Mr. Pathmanathan entitled to interest for the overdue payment of benefits?
Which party is entitled to its expenses?

Result:

All claims pursued by Mr. Pathmanathan are dismissed.
The parties do not seek expenses in this proceeding.

BACKGROUND

On July 7, 2015 at 11:30 a.m., a pre-hearing discussion was held at the offices of FSCO in which all the parties, including Mr. Pathmanathan were in attendance. In the course of the discussion, the pre-hearing Arbitrator, with the agreement of the parties, set a location, date and time for the arbitration hearing. The arbitration hearing in this matter was set to be heard at the Offices of FSCO on March 30, 2016 commencing at 10:00 a.m. This was confirmed in the pre-hearing letter dated July 7, 2015 which was sent to all in attendance. A copy of the pre-hearing letter and subsequent Notice of Hearing were sent to Mr. Pathmanathan at the last known address filed with FSCO. Rule 9.1(c) of the Dispute Resolution Practice Code provides that FSCO is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records.

The Hearing of March 30, 2016

I attended the hearing room at 10:00 a.m. on March 30, 2016. Both counsel were present. Mr. Pathmanathan was not in attendance. Mr. Makkar indicated that he did not know the whereabouts of his client; however, he was sure that Mr. Pathmanathan was aware of the scheduled hearing that was to take place on this day.

Motion for Removal

Counsel for the applicant brought an oral motion to be removed as Mr. Pathmanathan's representative on the grounds that there has been a breakdown in the solicitor-client relationship. Counsel for the insurer did not oppose this request. I denied the request because of the awkwardness in the timing of it and on the basis that no material was submitted to me or received by FSCO showing that Mr. Pathmanathan was made aware of this desire of counsel.

Motion to Dismiss

After a recess for 30 minutes, in the event that Mr. Pathmanathan was running late, I commenced the hearing. I attended again at 10:30 a.m. Mr. Pathmanathan had not appeared nor was he in the waiting area at FSCO. After confirming with counsel that the most current contact information for Mr. Pathmanathan has been shared with FSCO and with each other and that best efforts have been made to reach him, I commenced the hearing in this matter in his absence.

The burden rested with Mr. Pathmanathan to bring evidence in support of his claims at the hearing. By his absence, Mr. Pathmanathan did not adduce any evidence. He attended the pre-hearing discussion and thus was present when the date for the hearing was set. If he could not manage to attend or if circumstances had arisen which made it impossible for him to proceed at this time, he had the opportunity to advise his representative. Mr. Makkar advised that he has not had recent contact with Mr. Pathmanathan in any regard.

Ms. Ragogna, on behalf of Unifund, requested that Mr. Pathmanathan's claims be dismissed. Mr. Makkar consented to the Insurer's motion that the application be dismissed. The onus rests with Mr. Pathmanathan to prove entitlement to the benefits being claimed. He has not done so. Mr. Pathmanathan's claims are dismissed.

EXPENSES:

Counsel agreed not to pursue expenses in this hearing.

May 13, 2016

Richard Quan Arbitrator

Date

Financial Services Commission of Ontario