Neutral Citation: 2016 ONFSCDRS 315 FSCO A13-010093

BETWEEN:

Pirabakaran Sabaratnam, Applicant and Certas Direct Insurance Company, Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Paulina Gueller Heard: In person at ADR Chambers on September 26, 2016

Appearances: Mr. Pirabakaran Sabaratnam did not participate Mr. Kevin Griffiths participated for Certas Direct Insurance Company

Issues

The Applicant, Mr. Pirabakaran Sabaratnam, was injured in a motor vehicle accident on June 20, 2010, and sought accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Sabaratnam, through his representative, 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 Preliminary Issue Hearing are:

Should Mr. Pirabakaran Sabaratnam’s Application for Arbitration be dismissed?
Is Certas entitled to its expenses in respect of this Arbitration, and if so, in what amount?

Result

Mr. Pirabakaran Sabaratnam’s Application for Arbitration is dismissed.
Certas is entitled to its expenses of $3,102.00, inclusive of all fees, disbursements and HST, payable forthwith.

EVIDENCE AND ANALYSIS

A Preliminary Issue Hearing was scheduled for August 24, 2016, to decide whether Mr. Sabaratnam’s motor vehicle accident was an accident within the meaning of the Schedule.

On August 11, 2016, the Law Office of Meleni David filed a Motion to be removed from the record as the Applicant’s representative.

A Pre-Hearing resumption was held on August 17, 2016, where I ordered the Law Office of Meleni David be removed from the record as Mr. Sabaratnam’s representative. Consequently, Mr. Sabaratnam became self-represented.

By letter, dated August 17, 2016, sent to Mr. Sabaratnam, by regular and registered mail to the address of record, I ordered: a) Mr. Sabaratnam to contact ADR Chambers no later than September 16, 2016, to advise how he wanted to proceed with his Application for Arbitration; b) the adjournment of the Preliminary Issue Hearing scheduled for August 24, 2016, and the rescheduling of it to September 26, 2016; and c) that if Mr. Sabaratnam or anyone on his behalf did not attend the Preliminary Issue Hearing, I would conclude that Mr. Sabaratnam had abandoned his Application for Arbitration and I could decide to close the file administratively or dismiss the Application for Arbitration.

A Preliminary Issue Hearing was held on September 26, 2016. Mr. Sabaratnam did not attend despite being notified.

Following a 45-minute recess, to allow Mr. Sabaratnam the opportunity to attend, I resumed the Preliminary Issue Hearing. Mr. Sabaratnam did not attend and no one appeared for him. Therefore, the Preliminary Issue Hearing proceeded in his absence.

Mr. Griffiths brought a Motion to dismiss the Application for Arbitration.

Mr. Griffiths also requested expenses against the Applicant, and provided me with a copy of the Insurer’s Bill of Costs, which amounts to $6,959.18.

Dismissal of the Application for Arbitration

I am satisfied that the Notices of Hearing complied with the requirements set out in Rule 9.1(c) of the Dispute Resolution Practice Code (“DRPC”) and section 6 of the Statutory Powers Procedure Act (“SPPA”). All correspondence, including the notices of the Preliminary Issue Hearing, was sent to the address in our records.

Rule 37.9 of the DRPC states:

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.

Notwithstanding the notices and letters, Mr. Sabaratnam did not attend the Preliminary Issue Hearing on September 26, 2016, and the Preliminary Issue Hearing proceeded in his absence.

I am satisfied that Mr. Sabaratnam has been provided with ample opportunity to advance and prove his claim. He attended the first Pre-Hearing held on November 17, 2014, but he did not attend any of the following 3 Pre-Hearings held on March 10, April 12 and August 17, 2016. Mr. Sabaratnam also failed to instruct his counsel and respond my letter, dated August 17, 2016.

In order to establish entitlement to benefits, the Applicant has the onus of the proof; he must provide evidence in support of his claims. Since Mr. Sabaratnam did not appear at the Preliminary Issue Hearing and no evidence was presented to support his claims, this Application for Arbitration is dismissed.

EXPENSES

Certas requested its legal expenses of the proceedings and provided a Bill of Costs for a total of $6,959.18, which includes:

$2,237.95, plus $290.93 for HST, for 60.1 hours of Legal Aid Rates of combined work time between lawyers and law clerks; and,
$3,560.10, inclusive of HST, for disbursements as follows:

a) $929.10 for copies, printing to Prima Fact, fax, long distance;

b) $165.60 for Travel costs to attend in person Pre-Hearing and Hearing (mileage at $0.46/km);

c) $1,500.00 for a Report by Kodsi Engineering of October 14, 2010;

d) $452.00 for Airbag Expert Report of March 21, 2011;

e) $92.43 for Courier; and

f) $12.00 for parking.

The Law

Rule 75.1 of the DRPC sets out the criteria for an Arbitrator to consider when awarding expenses to a party. An adjudicator must be satisfied that the award sought is justified having regard to the criteria set out in Rule 75.2 of the DRPC as follows:

The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

a. each party's degree of success in the outcome of the proceeding;

b. …

c. 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;

d. whether any aspect of the proceeding was improper, vexatious or unnecessary;

Section 282 (11) of the Insurance Act sets out:

The arbitrator may award, according to the criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

Section 4 of the Schedule to the Expense Regulation sets out which disbursements and the maximum amounts that an insured person or the Insurer may be awarded, including the following:

For long distance telephone, facsimile and other telecommunication charges.
For typing, printing and reproducing copies of documents.
For the delivery, by mail or courier, of items relating to the arbitration, appeal, variation or revocation hearing.
For other out-of-pocket expenses incurred in furtherance of the arbitration, appeal, variation or revocation hearing.
Any applicable taxes paid in respect of the expenses referred to in this section.

Section 5 of the Schedule to the Expense Regulation states:

The amount of the following witness fees paid by or on behalf of the insured person or the insurer may be awarded:

For a report prepared by an expert, provided to the other parties to the arbitration or hearing and necessary for the conduct of the arbitration or hearing, in accordance with subsection (4).

The amount of the expenses paid by or on behalf of the insured person or the insurer to an expert for the preparation of a report may be awarded, to a maximum of $1,500.²

In awarding expenses, I take into consideration the relevant criteria, which in this case includes the parties’ success in the proceedings and their conduct.

Mr. Sabaratnam failed to attend his Arbitration proceedings and to prove his claim. Certas is the successful party and is entitled to its expenses.

i) Legal Expenses:

I consider the time that Certas’ counsel spent in preparing responses to the Application for Arbitration and the written submissions for the Preliminary Issue Hearing and preparing for and attending 4 Pre-Hearings and the Preliminary Issue Hearing.

I also find that Certas was aware that Mr. Sabaratnam became self-represented. Therefore, I accept it is reasonable to grant some of Certas’ legal expenses, but I find the amount claimed of $2,528.98 to be excessive.

Accordingly, I exercise my discretion pursuant to subsection 282(11) of the Insurance Act, and order that Mr. Sabaratnam pay Certas’ legal expenses that I have assessed at $750.00, inclusive of HST.

ii) Disbursements:

Certas claimed disbursements in the amount of $1,199.13 related to photocopies, fax, printing, travel, courier and parking. These are all types of disbursements that may be permitted under the Expense Regulation. However, the Insurer did not provide me with supporting documentation.

In addition, the Insurer’s Bill of Costs includes the amount of $1,952.00 for the costs of preparing 2 Experts Reports: a) Kodsi Engineering Incorporated, dated October 14, 2010; and b) Bob Edwards, Airbag Expert, dated March 21, 2011.

Mr. Griffiths submitted that Certas incurred the costs in the preparation of the experts’ reports to assess the claim and they are included in the material submitted for the Preliminary Issue Hearing, so that amount should be recoverable from the Applicant.

The date of the accident is June 20, 2010, more than 6 years prior to this Preliminary Issue Hearing, originally scheduled to proceed to decide whether this accident was an accident within the meaning of the Schedule. I find that the reports were prepared immediately after the accident, one in the year 2010 and the other in 2011. Therefore, I accept that the Insurer had to necessarily prepare Experts Reports to assess the claim, and they also assisted the Insurer in the preparation of its submissions at this Preliminary Issue Hearing.³

Accordingly, I exercise my discretion pursuant to subsection 282(11) of the Insurance Act, and order that Certas is entitled to disbursements in the amount of $2,352.00 as follows: a) $1,500.00 for the Kodsi Engineering Report of October 2010; b) $500.00 for the Airbag Expert Report of March 21, 2011; and, c) $400.00 for all the other disbursements requested, inclusive of HST.

Therefore, I find that Certas is entitled to its expenses, and Mr. Sabaratnam shall pay the amount of $3,102.00 ($750.00 for legal costs plus $2,352.00 for disbursements), inclusive of all fees, disbursements and HST.

This amount is payable forthwith.

November 28, 2016

Paulina Gueller Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

Mr. Sabaratnam’s Application for Arbitration is dismissed.
Certas is entitled to its expenses of $3,102.00, inclusive of all fees, disbursements and HST, payable forthwith.