Greg Wright v. Personal Insurance Company of Canada, 2016 ONFSCDRS 30

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

Neutral Citation: 2016 ONFSCDRS 30

FSCO A14-007277

BETWEEN:

GREG WRIGHT

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Dana M. Hirsh

Heard: October 8, 2015, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Wright Conor Wyche for Personal Insurance Company of Canada

Issues:

The Applicant, Greg Wright, claims that he was injured in a motor vehicle accident on March 12, 2012. He applied for statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Issues arose between the parties concerning Mr. Wright’s entitlement to accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. 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 Mr. Wright entitled to receive a medical benefit, in the amount of $1,450.19, for physiotherapy and rehabilitation, recommended by Publix Rehab, in a treatment plan dated March 12, 2012?
Is Personal liable to pay Mr. Wright’s expenses in respect of the arbitration?
Is Mr. Wright liable to pay Personal’s expenses in respect of the arbitration?
Is Mr. 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:

Mr. 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 representatives for Mr. Wright.

On September 11, 2015, a resumption of pre-hearing was held before me at the offices of FSCO. Again, Mr. Wright failed to appear. Although Mr. Raskin brought a motion for an order permitting him and P&M to withdraw from this proceeding as Mr. Wright’s legal representatives of record, I adjourned the matter in order to ensure that Mr. 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 Mr. Wright at his last known address.

A Notice of Hearing, dated September 22, 2015, confirming the October 8, 2015 hearing, was also sent to Mr. Wright at his 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 Mr. 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 Mr. Wright’s legal 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., Mr. Wright had still not appeared, nor did anyone appear on his behalf.

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

As Mr. Wright did not attend to present any evidence, he failed to prove his entitlement to any of the benefits claimed. Accordingly, I dismissed his claims.

EXPENSES:

Personal is seeking expenses in the total amount of $5,527.00, made up as follows: $2,527.00 in fees, and $3,000.00 in disbursements. The Insurer was entirely successful and 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 $2,527.00 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 $2,000.00, 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 at the hearing 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