Dina Voltaire v. Certas Direct Insurance Company, 2016 ONFSCDRS 225

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

Neutral Citation: 2016 ONFSCDRS 225

FSCO A15-000951

BETWEEN:

DINA VOLTAIRE

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Dana Hirsh

Heard: January 18, 2016, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Ms. Voltaire

Dana R. Spadafina for Certas Direct Insurance Company

Issues:

The Applicant, Dina Voltaire, claims that she was injured in a motor vehicle accident on January 18, 2014. She applied for and received statutory accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ Issues arose between the parties concerning Ms. Voltaire’s entitlement to accident benefits. The parties were unable to resolve their disputes through mediation, and Ms. Voltaire applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing, as identified in the Application for Arbitration and the pre-hearing letter of December 14, 2015, are as follows:

Is Ms. Voltaire entitled to receive a weekly non-earner benefit, in the amount of $185.00 per week, from July 18, 2014 to date and ongoing?
Is Ms. Voltaire entitled to receive a medical benefit, in the amount of $3,314.18, for medical services recommended by Promed, in a treatment plan dated January 29, 2014?
Is Certas liable to pay Ms. Voltaire’s expenses in respect of the arbitration?
Is Ms. Voltaire liable to pay Certas’ expenses in respect of the arbitration?
Is Ms. Voltaire entitled to interest for the overdue payment of benefits?

Result:

Ms. Voltaire’s claims are dismissed.
Ms. Voltaire shall pay to the Insurer its expenses of this proceeding, fixed in the amount of $1,500.00, inclusive of fees, disbursements and H.S.T.

EVIDENCE AND ANALYSIS:

Background:

Prior to the pre-hearing in this matter, Mr. David Carranza brought a motion for an order permitting him and ICS Legal Services Professional Corporation (“ICS”) to withdraw from this proceeding as Ms. Voltaire’s legal representatives of record. Mr. Carranza advised that there had been a breakdown in the solicitor-client relationship between himself and the Applicant. The motion was unopposed by the Insurer.

On July 23, 2015, Senior Arbitrator Lloyd (J.R.) Richards issued an order permitting Mr. Carranza and ICS to withdraw as Ms. Voltaire’s representatives of record on the basis that they had met the requirements of Rule 9 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) (the “Code”) and that there had been a breakdown in the solicitor-client relationship.

On December 14, 2015, a pre-hearing was held before me at 11:30 a.m. the offices of FSCO. Ms. Voltaire failed to appear. At approximately 12:00 p.m., I attempted to reach the Applicant by telephone in the presence of Ms. Spadafina. The Applicant answered the telephone and confirmed her identity; however, she proceeded to hang up on me after I introduced myself and informed her that I was calling because of the scheduled pre-hearing. I attempted to reach her by telephone two more times to no avail before concluding the pre-hearing.

At the pre-hearing discussion, a hearing date was scheduled for January 18, 2016, at 10:00 a.m., at the offices of FSCO. A pre-hearing letter dated December 14, 2015, setting the hearing date of January 18, 2016, in bold, was sent to Ms. Voltaire at her last known address.

A Notice of Hearing, dated December 15, 2015, confirming the January 18, 2016 hearing, was also sent to Ms. Voltaire at her last known address.

The Arbitration Hearing:

The hearing was scheduled to commence at 10:00 a.m. on January 18, 2016, at the offices of FSCO. At that time, Ms. Spadafina, legal counsel, appeared on behalf of Certas. By approximately 10:30 a.m., Ms. Voltaire had still not appeared, nor did anyone on her behalf.

Being satisfied that Ms. Voltaire had been properly served at her last known address with the Notice of Hearing, the arbitration proceeded in her absence.

As Ms. Voltaire did not attend to present any evidence, she failed to prove her entitlement to any of the benefits claimed. Accordingly, I dismissed her claims.

EXPENSES:

Certas is seeking expenses in the total amount of $4,237.56, made up as follows: $3,936.03 in fees, and $301.53 in disbursements (inclusive of H.S.T.), in accordance with its Bill of Costs. The Insurer was entirely successful as all of the Applicant’s claims were dismissed. Accordingly, it is entitled to its reasonable expenses of this arbitration proceeding.

Counsel for Certas claimed fees in the amount of $2,537.60, along with $290.75 for work conducted by Ms. Meaghan Davies, a law clerk. Counsel fees were based upon the Legal Aid rates permitted under FSCO’s Expense Regulation.² I find the number of hours that have been claimed to be slightly excessive given the early stage of the proceeding. Nevertheless, the Insurer should be compensated at an appropriate rate for its legal representatives in reviewing the file, preparing a Response, as well as preparing for, and attending a pre-hearing conference and a hearing.

All of the disbursements that Certas claimed are permissible under the Expense Regulation. Accordingly, I find that the Insurer is entitled to its disbursements in this matter, in the total amount of $301.53.

I fix expenses at $1,500.00, inclusive of all fees, disbursements and any applicable taxes, payable by the Applicant to Certas.

August 25, 2016

Dana Hirsh Arbitrator

Date