Aman Zia v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2016 ONFSCDRS 172

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

Neutral Citation: 2016 ONFSCDRS 172

FSCO A15-004782

BETWEEN:

AMAN ZIA

Applicant

and

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

Insurer

DECISION ON EXPENSES

Before:

Arbitrator Andrew M. Diamond

Heard:

In person at ADR Chambers on March 21, 2016

Appearances:

Mr. Muhammad M. Alam for Mr. Aman Zia

Mr. Jason Anand for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Mr. Aman Zia, was injured in a motor vehicle accident on June 18, 2013 and applied for statutory 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 Mr. Zia applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The Insurer then initiated a Preliminary Issue Hearing to dismiss the Application for Arbitration for the Applicant’s failure to attend at Insurer Examinations.

At the Pre-Hearing of this matter before me, the parties agreed to a schedule for the exchange of materials for the Preliminary Issue Hearing. At that time, counsel for the Applicant advised that his client was committed to attending the Insurer Examination. Nevertheless, in part as a result of the history of the Applicant’s conduct, counsel for the Insurer thought it appropriate and necessary to have the Preliminary Issue Hearing proceed.

Prior to the hearing of argument in the Preliminary Issue Hearing, the Applicant did in fact attend the Insurer Examination. Counsel for the Insurer agreed that the arguing of the Preliminary Issue was no longer necessary; however, he argued that the Insurer should be entitled to its expenses of preparing for the Preliminary Issue Hearing.

The issue in this Expense Hearing is:

Is the Applicant required to pay the Insurer its expenses of the Preliminary Issue Hearing and, if so, in what amount?

Result:

The question of the Insurer’s entitlement to its expenses of the Preliminary Issue Hearing is reserved to the Arbitrator who is seized of the Arbitration of the substantive matters in dispute.

EVIDENCE AND ANALYSIS:

The Insurer argues that prior to the Pre-Hearing in this matter, the Applicant, through his counsel, had refused to attend the Insurer’s independent medicals, and that it was only through seeking to bring the Preliminary Issue Hearing and following through on producing its Preliminary Issue Hearing materials, that the Applicant in fact agreed to attend the Insurer Examinations. Furthermore, the Insurer argues that the usefulness of the examination that was in fact conducted is questionable with respect to the issue of whether accident benefits were properly denied (the issue of the Arbitration), because the examinations were not available at the time the Insurer decided to deny the benefits in question.

In response, counsel for the Applicant argues that since his client agreed to attend the Insurer Examination prior to counsel for the Insurer expending any amount on preparing its materials for the Preliminary Issue Hearing, no expenses should be awarded.

I am of the view that the delay in the Applicant’s attending the examination may be a relevant issue in the final disposition of the Arbitration and, as a result, the Arbitrator hearing the matter will be in a better position to determine whether the Insurer should have its expenses of this Preliminary Issue Hearing paid by the Applicant, as they will have the benefit of all of the relevant facts, including the final success of the parties.

EXPENSES:

The question of the Insurer’s entitlement to its expenses of the Preliminary Issue Hearing is reserved to the Arbitrator who is seized of the Arbitration of the substantive matters in dispute.

June 13, 2016

Andrew M. Diamond Arbitrator

Date