REASONS FOR DECISION

Before: Stuart J. Mutch

Heard: February 18, 2016 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Ms. Abdi Ms. Emma Duggan for AXA Insurance (Canada)

Issues:

The Applicant, Lila Abdi, was injured in a motor vehicle accident on March 31, 2012. Disputes arose between Ms. Abdi and her insurer, AXA Insurance (Canada) (“AXA”), concerning her entitlement to accident benefits payable under the Schedule¹ and Ms. Abdi applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act², by way of application dated December 10, 2013.

BACKGROUND

The affidavit of Tamriko Timofeeva, sworn January 20, 2016, and filed with FSCO, sets out the following circumstances. On June 8, 2015 the Applicant and AXA reached a settlement agreement. The Applicant was asked to attend at her counsel’s office to sign a release. Despite numerous attempts to contact the Applicant, she was unresponsive and did not attend at her counsel’s office.

According to a pre-hearing letter, issued by Arbitrator Sapin and dated January 22, 2016, the Applicant’s counsel was permitted to withdraw at the pre-hearing held that day. The Applicant did not participate in the pre-hearing. A hearing date of February 18, 2016 was set to commence at 10:00 a.m. at the Financial Services Commission. A copy of that letter was sent to the Applicant’s last known address. It was not returned. Rule 9.1(c) of the Dispute Resolution Practice Code provides that FSCO is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records. In the letter, the Applicant was advised of the hearing date and that her claims may be dismissed if she does not attend.

The Hearing of February 18, 2016

I attended the hearing room at 10:00 a.m. on February 18, 2016. Ms. Duggan was present. I took a recess until 10:15 and checked for Ms. Abdi in the waiting room and I checked to see if she had attempted to contact FSCO. There was no indication she was present on the floor or that she had attempted to contact FSCO.

The hearing resumed at approximately 10:25. I heard submissions from Ms. Duggan regarding dismissal of the Applicant’s claims and expenses.

To my knowledge, the Applicant has made no contact with FSCO since June 2015. She was properly advised of the February 18 hearing. Neither she nor a representative appeared. No evidence was presented in support of her claims. The onus is on her to prove entitlement to the benefits she claims. She has not done so. Her claims are dismissed.

EXPENSES:

Ms. Duggan asked for AXA’s expenses, on the basis that: the Applicant’s claims were frivolous and vexatious and that her actions had unduly prolonged the proceedings. These are both criteria I may consider in awarding expenses.³ Ms. Duggan provided a Bill of Costs. Included in it is a claim for the filing fee paid by an insurer when an insured files an Application for Arbitration. The Expense Regulation does not permit me to award a filing fee paid by an insurer as an expense.

There have been allegations by AXA that the Applicant wilfully misrepresented material facts with respect to her application and therefore her claims were frivolous and vexatious. These allegations have not been proven. Of greater merit is the argument that the Applicant has prolonged these proceedings by failing to participate in the process, either by signing the necessary documents in order to effect a settlement or by reneging on the settlement and requesting a resumed pre-hearing. By failing to give AXA and FSCO notice of her intentions either way, the Applicant has effectively prolonged these proceedings and put AXA to unnecessary expense.

Ms. Duggan advised that, since June 2015, most of the time spent on this file has involved correspondence to the Applicant and her then counsel. I therefore allowed five hours of the time claimed as well as one hour for preparation and two hours for her attendance at the hearing for a total of eight hours all at the rate of $109.44 per hour, as well as two hours of her law clerk’s time and a courier disbursement.

Accordingly, I fix AXA’s expenses at $1,000.80 plus $130.10 for HST, pursuant to subsection 282(11) of the Insurance Act.

February 22, 2016

Stuart J. Mutch Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 62

FSCO A13-015102

BETWEEN:

LILA ABDI Applicant

and

AXA INSURANCE (CANADA) Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The Applicant’s claims are dismissed.
Ms. Abdi shall forthwith pay AXA Insurance’s (Canada) expenses, fixed at $1,000.80, plus $130.10 for H.S.T. in respect of this arbitration, pursuant to subsection 282(11) of the Insurance Act.