Francis Mena v. Co-operators General Insurance Company, 2016 ONFSCDRS 292

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

Neutral Citation: 2016 ONFSCDRS 292

FSCO A15-007263

BETWEEN:

FRANCIS MENA

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Maggy Murray

Heard: September 12, 2016, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Ms. Mena did not appear Andrea Lim for Co-operators General Insurance Company

Issues:

The Applicant, Francis Mena, was injured in a motor vehicle accident on August 30, 2013. She applied for statutory accident benefits from Co-operators General Insurance Company (“Co-operators”), payable under the Schedule.¹ Co-operators refused to pay for various benefits. The parties were unable to resolve their disputes through mediation, and Ms. Mena 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:

Is Ms. Mena entitled to a non-earner benefit in the amount of $185.00 per week from February 3, 2014 onwards?
Is Ms. Mena entitled to medical benefits for physical therapy recommended by Scarborough Physiotherapy in two treatment and assessment plans as follows:

i. $2,659.80 in a plan dated October 17, 2013; and,

ii. $1,389.00 in a plan dated February 9, 2015.

Result:

Ms. Mena’s claims are dismissed.
Ms. Mena shall pay Co-operators’s expenses of the arbitration fixed in the amount of $2,846.93, inclusive of fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

Ms. Mena did not attend the pre-hearing on May 12, 2016 or the motion to remove her counsel from representing her on July 25, 2016 at the Financial Services Commission of Ontario. On July 25, 2015, her counsel was removed from representing her. Ms. Mena did not attend the arbitration hearing at 10:00 a.m. on September 12, 2015. No one appeared on her behalf. Co-operators requested that the arbitration proceed in the absence of Ms. Mena. I adjourned the hearing until 10:15 a.m. to allow time for Ms. Mena to attend. At 10:15 a.m., I resumed the hearing in Ms. Mena's absence.

Rule 37.7 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) provides as follows:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party's absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Notice of the hearing was sent to the Applicant by FSCO at her last known address.

The burden of proof in this arbitration proceeding lies with Ms. Mena. In order to establish her entitlement to benefits, she must provide evidence supporting her claims. She presented no evidence and has failed to meet the burden of proof. Consequently, her claims for statutory accident benefits, interest and expenses are dismissed.

EXPENSES:

Co-operators sought an order that Ms. Mena was liable to pay $2,846.93 inclusive of fees, disbursements and HST, calculated in accordance with the legal aid rates for the law clerk and lawyers.

I have considered the criteria in the expense regulation, which are contained in Rule 75.2 of the Code. The relevant criteria are:

Each party’s degree of success in the outcome of the proceeding.
Any written offers to settle that were made in accordance with the rules of practice and procedure applicable to the proceeding after the conclusion of mediation and before the conclusion of the hearing.
Whether novel issues are raised in the proceeding.
The conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.

I find that Ms. Mena was unsuccessful in all of her claims. I was not advised of any written offers to settle. There were no novel issues raised in the proceeding. An important consideration is that Ms. Mena’s conduct prolonged the proceeding. I was presented with no evidence that any aspect of this proceeding was improper or vexatious. It appears that some aspects of the proceeding were unnecessary due to Ms. Mena’s conduct. I find that Co-operators is entitled to its reasonable expenses in this arbitration based on its success.

The Insurer should be compensated at an appropriate rate for the services of its legal counsel and law clerk in reviewing the file, preparing a Response and preparing for and attending at the pre-hearing conference. I fix expenses at $2,846.93, inclusive of disbursements and HST, payable by Ms. Mena to Co-operators.

November 3, 2016

Maggy Murray Arbitrator

Date