Financial Services Commission of Ontario
Neutral Citation: 2016 ONFSCDRS 24 FSCO A14-000343
BETWEEN:
BUKET UNAYUK Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Arbitrator Harvey Savage Heard: In person at ADR Chambers on November 30, 2015 Appearances: Ms. Buket Unayuk participated Ms. Katherine E. Kolnhofer participated for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Ms. Buket Unayuk, was injured in a motor vehicle accident which occurred on March 10, 2012. She applied for accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicant 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:
Did Ms. Unayuk suffer a catastrophic impairment as defined in the Schedule?
Is Ms. Unayuk entitled to receive a Medical Benefit for $209.00 for various medications and parking issues as submitted in the OCF-6, dated April 4, 2012?
Is Ms. Unayuk entitled to Attendant Care Benefits of $3,000.00 per month commencing from the date of loss and ongoing, less any amounts already paid?
Is Mr. Unayuk entitled to an allowance for expenses actually incurred in visiting Ms. Unayuk during her treatment recovery?
Is Ms. Unayuk entitled to payments for damage to clothing, glasses, hearing aids, etc., of $1,690.00, dated April 26, 2012?
Is Ms. Unayuk entitled to payments for the Cost of Examinations of $120.00 for a dental assessment as submitted by Dr. R. Ing?
Is Wawanesa liable to pay Ms. Unayuk’s expenses in respect of the Arbitration?
Is Ms. Unayuk entitled to interest for the overdue payment of benefits?
Result:
Ms. Unayuk’s Application for Arbitration is dismissed.
The Insurer is entitled to its expenses in the amount of $38,486.57, inclusive of HST and disbursements.
EVIDENCE AND ANALYSIS:
Adjournment Request
At the outset of the Hearing, the Insurer tendered two Exhibits, which I entered as follows:
Exhibit 1 is a series of photographs and texts which were taken from various sources, purporting to juxtapose on specified dates certain of the Applicant’s activities against medical evidence concerning the Applicant.
Exhibit 2 is an affidavit of Bahar Ormangoren, an affiant who knows the Applicant and who identified the Applicant in the context of various photographs in which the Applicant appeared.
The Applicant requested an adjournment in order to retain new counsel. Her previous counsel, Bogoroch and Associates, had been removed as counsel of record by Arbitrator Charles Matheson on November 17, 2015, upon that counsel’s application, and with the consent of the Insurer.
The Insurer’s counsel objected to the adjournment. Referring to the filed Exhibits, counsel submitted that Exhibits 1 and 2 made clear that there was a marked discrepancy between the Applicant’s clinical medical reports and the numerous contemporaneous videos, photographs, Facebook excerpts and other material which convinced the Insurer that the Applicant had acted fraudulently. She further submitted that the Insurer had gone to great expense and had spent a very considerable amount of time in its investigation which ultimately led it to this conclusion. She has also summoned a number of witnesses who were prepared to testify. She argued that in all the circumstances, as well as having regard to former counsel’s brief, the Hearing should proceed.
During the process of my Hearing oral submissions on the adjournment request and also engaging the parties in questions, the Applicant’s father continually disrupted the proceedings, attempting to answer for the Applicant. After several unheeded cautions, I finally asked him to remove himself from the Hearing room because the disruption was too distracting of attempts to conduct a proper Hearing. He did so. However, after he left, he began to shout from outside the room, and bang on the door to the Hearing room in a loud manner.
The individuals inside the Hearing room expressed feeling unsafe by the father’s actions, which eventually resulted in the police being called to the premises. One of his utterances outside the Hearing room was addressed to the Applicant for the Applicant to leave. While I was still in the process of conducting the Hearing on this adjournment request, the Applicant announced that she was leaving. I cautioned her that she should remain since the Hearing was ongoing, and she was at risk that the Arbitration could be dismissed against her. She left nevertheless.
Decision and Reasons
There were several determinative reasons why I denied the adjournment request and dismissed the Arbitration orally, with reasons to follow.
First, the Applicant removed herself from the Hearing while it was ongoing and before I was able to rule on the adjournment request. In doing so, she did not heed my caution to her about the potential consequences of her departure. Effectively, she abandoned the Hearing.
A Turkish interpreter was present throughout and interpreted everything to the Applicant from English to Turkish, and the Applicant at no time protested during the Hearing that she did not understand. The Applicant’s actions in unilaterally departing the Hearing manifestly demonstrated disrespect for the integrity of the tribunal.
Secondly, in submitting after the Applicant’s departure, that the application be dismissed, not just that the adjournment request be denied, the Insurer referred to the extensive evidentiary material which demonstrated that the Applicant had acted fraudulently and the application under the circumstances was without merit.
This evidence was uncontradicted because of the Applicant’s abandonment of the Hearing. In this regard, I note that an Applicant bears the onus of proving entitlement to the claimed benefits. Because Ms. Unayuk did not appear at the Hearing and no evidence was presented to support her claims, this Arbitration is dismissed.
Conclusion
Therefore, I find all of the above reasons are sufficient to dismiss the Application for Arbitration.
EXPENSES:
At the time of my decision on November 30, 3015, the Insurer requested costs. She tendered a Bill of Costs which lists total fees and disbursements in the amount of $41,900.27 at the Legal Aid Rate. I asked for written submissions and received them on December 2, 2015.
The submissions are extensive and document in careful detail the many productions and medical records from the Applicant which required review and hence consumed a great deal of preparation time from a variety of persons at the offices of Insurer’s counsel, i.e. Bell Temple.
The criteria to be considered in an Arbitrator’s awarding of expenses are outlined in Section F(2) of the Dispute Resolution Practice Code. I agree with the Insurer that the relevant excerpts for this case are as follows:
Each party’s degree of success in the outcome of the proceeding. Through its significant amount of preparation and research, the Insurer was successful in having the Applicant’s Application dismissed.
There were aspects of novelty in this case. The Insurer was faced with serious allegations that a material misrepresentation had occurred, notwithstanding the well papered medical file of the Applicant. To address much of the evidence from the Applicant, the Insurer necessarily engaged in extensive surveillance and conducted forensic investigation, and in addition assembled detailed, complex affidavit evidence. The novelty lay in the large assembly and concentration of work which focussed on the allegation.
There is indication that the Applicant prolonged, obstructed and hindered this proceeding. She allegedly misrepresented her claim (and she has never refuted this allegation); there is compelling evidence that she misled her former counsel; she failed to appear at the Pre-Hearing resumption on November 17, 2015; and ultimately abandoned the present Hearing before its conclusion.
Because of the Applicant’s actions, this application was improper, frivolous and vexatious and caused the Insurer unnecessary costs.
I do place significance on the large volume and quality of the work done by the Insurer. Potentially a number of Hearing days were thereby spared and unnecessary additional expense avoided.
The only items which I cannot award are the $390.00 fee for the Court Reporter, because that was an optional cost, and the $3,000.00 claim for its Insurer’s Assessment, because being subject to very strict limitations, that assessment is not a proper disbursement.
In the main, however, I find that the fees and disbursements are reasonable, properly incurred, and I therefore allow them for the above reasons.
Total fees and disbursements, including HST, are awarded in the amount of $38,486.57.
Conclusion
Wawanesa is awarded $38,486.57 in expenses, inclusive of HST and disbursements.
January 18, 2016
Harvey Savage Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2016 ONFSCDRS 24 FSCO A14-000343
BETWEEN:
BUKET UNAYUK Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. Unayuk’s Application for Arbitration is dismissed.
The Insurer is entitled to its expenses in the amount of $38,486.57, inclusive of HST and disbursements.
January 18, 2016
Harvey Savage Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.