Neutral Citation: 2016 ONFSCDRS 28

FSCO A14-008095

BETWEEN:

BEATA WRIGHT Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Dana Hirsh Heard: October 8, 2015, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: No one appearing for Ms. Wright Conor Wyche for Personal Insurance Company of Canada

Issues:

The Applicant, Beata Wright, claims that she was injured in a motor vehicle accident on March 12, 2012. She applied for statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Issues arose between the parties concerning Ms. Wright’s entitlement to accident benefits. The parties were unable to resolve their disputes through mediation, and Ms. Wright 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 September 22, 2015, are as follows:

Is Ms. Wright entitled to receive a medical benefit, in the amount of $400.02, for physiotherapy recommended by Publix Rehabilitation Center, in a treatment plan dated March 12, 2012?
Is Personal liable to pay Ms. Wright’s expenses in respect of the arbitration?
Is Ms. Wright liable to pay Personal’s expenses in respect of the arbitration?
Is Ms. Wright entitled to interest for the overdue payment of benefits?

Result:

The Applicant’s claims are dismissed.
The Applicant 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:

Ms. Wright failed to attend a pre-hearing discussion held before Arbitrator Muzzi at the offices of FSCO in Toronto on July 23, 2015. The record shows that, at the pre-hearing, Mr. Lev Raskin of P&M Personal Injury Law (“P&M”) advised that he had no instructions regarding the arbitration proceeding and as such, he intended to bring a motion for leave to withdraw as legal representative for Ms. Wright.

On September 11, 2015, a resumption of pre-hearing was held before me at the offices of FSCO. Again, Ms. Wright failed to appear. Although Mr. Raskin brought a motion for an order permitting him and P&M to withdraw from this proceeding as Ms. Wright’s legal representatives of record, I adjourned the matter in order to ensure that Ms. Wright received notice of the motion, and to provide Mr. Raskin with sufficient time to ensure compliance with Rule 9.7 of the Dispute Resolution Practice Code (Fourth Edition, Updated-January 2014) (the “Code”).

A hearing date was scheduled for October 8, 2015, at 11:00 a.m., at the offices of FSCO. A pre-hearing letter dated September 22, 2015, setting the hearing date of October 8, 2015 in bold, was sent to Ms. Wright at her last known address.

A Notice of Hearing, dated September 22, 2015, confirming the October 8, 2015 hearing, was also sent to Ms. Wright at her last known address.

The Arbitration Hearing:

Prior to the commencement of the hearing, Mr. Raskin brought a motion for an order permitting him and P&M to withdraw as Ms. Wright’s legal representatives of record. I was satisfied that Mr. Raskin and P&M had met the requirements of Rule 9 of the Code, and I found that there had been a breakdown in the solicitor-client relationship. As a result, I permitted Mr. Raskin and P&M to withdraw as Ms. Wright’s representatives.

The hearing was scheduled to commence at 11:00 a.m. on October 8, 2015 at the offices of FSCO. At that time, Mr. Wyche, legal counsel, appeared on behalf of Personal. By approximately 11:30 a.m., Ms. Wright had still not appeared, nor did anyone appear on her behalf.

Pursuant to Rule 37.7 of the Code, and being satisfied that Ms. Wright had been properly served at her last known address with the Notice of Hearing, the arbitration hearing proceeded in her absence.

As Ms. Wright 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:

Personal is seeking expenses in the total amount of $5,090.00, made up as follows: $2,090.00 in fees, and $3,000.00 in disbursements. 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 Personal claimed fees in the amount of $2,090.00 which was based upon the actual hourly rates charged by counsel as opposed to the Legal Aid rates permitted under FSCO’s Expense Regulation.² At the permissible Legal Aid rates, the maximum total fees that I could grant in this case would be approximately $1,700.00, inclusive of H.S.T. I find the number of hours that have been claimed to be reasonable, for the most part. Moreover, the Insurer should be compensated at an appropriate rate for the services of its legal representatives in reviewing the file, preparing a Response, and preparing for, and attending two pre-hearing conferences and a hearing. That being said, given that counsel for Personal was advised in advance not to prepare for a full hearing as the likelihood that the Applicant would appear was minimal, I find that fees of $1,500.00 (inclusive of H.S.T.) would be more reasonable.

The only disbursement that counsel for Personal claimed was Personal’s filing fee of $3,000.00. While the filing fee may be awarded where an applicant has refused or failed to submit to an insurer’s examination, or refused or failed to provide material required for an insurer’s examination,³ no evidence was presented to prove such refusals or failures on the part of the Applicant. Accordingly, I find that the Insurer is not entitled to any disbursements in this matter.

For the reasons stated above, I find that Personal is entitled to its expenses, and fix the amount at $1,500.00, inclusive of fees, disbursements and H.S.T.

January 19, 2016

Dana Hirsh Arbitrator

Date

Financial Services Commission of Ontario