Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 69

FSCO A13-009558

BETWEEN:

MICHAEL MAWUGBE

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on October 21, 22, & 23, 2015 and by written submissions due November 23, 2015

Appearances: Mr. Virender Sharma for Mr. Michael Mawugbe Ms. Carlie Flynn for Certas Direct Insurance Company

Issues:

The Applicant, Mr. Michael Mawugbe, was injured in a motor vehicle accident on November 21, 2010 in Vaughan, Ontario. He applied for statutory accident benefits from Certas Direct Insurance Company (“Certas”), payable under the SABS.¹ The parties were unable to resolve their disputes through mediation and Mr. Mawugbe, 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 at the Hearing are as follows:

1. Is Mr. Mawugbe entitled to income replacement benefits (IRBs)?
2. Is Mr. Mawugbe entitled to attendant care benefits?
3. Is Mr. Mawugbe entitled to interest for the overdue payment of benefits?
4. Is Mr. Mawugbe entitled to a special award?
5. Is Certas liable to pay Mr. Mawugbe’s expenses in respect of the Arbitration?
6. Is Mr. Mawugbe liable to pay Certas’ expenses in respect of the Arbitration?

Result:

1. The Applicant is not entitled to IRBs and this claim is dismissed.
2. The Applicant is not entitled to attendant care benefits and this claim is dismissed.
3. The Applicant is not entitled to receive interest for the overdue payment of benefits and this claim is dismissed.
4. The Applicant is not entitled to receive a special award and this claim is dismissed.
5. Certas is entitled to its expenses in this Arbitration. If the parties are unable to agree on the legal expense of this case, an Expense Hearing shall be requested within thirty (30) days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code. The request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and/or the amount of such expenses.

EVIDENCE AND ANALYSIS:

BACKGROUND

At the start of the Hearing, the issue of medical benefits was withdrawn by the Applicant and agreed to by consent of the Insurer, thereby leaving the remaining issues of IRBs from November 28, 2010 to November 21, 2011 at a rate of $246.40 per week; attendant care benefits at a rate of $466.07 per month from November 21, 2010 to May 20, 2011; interest and special award in dispute.

The Applicant is a construction worker specializing in the area of tile and marble installation. He is a 50% owner in two small construction companies, Westcoast Tile and Canabond. His business partner, Mr. Sylvester Yeboah, owns the other 50% stake of the businesses.

This accident occurred in the parking lot of the Vaughan Mills Shopping Centre on November 21, 2010 where the Applicant’s vehicle was struck by another vehicle that was backing out of a parking spot. The police and ambulance did not attend the scene and the Applicant reported the accident to the police collision centre the following day.

Immediately after the accident, the Applicant stated that he didn’t feel any pain and it was 2 days post-accident that he started to experience pain in his right hand.² At the Hearing, the Applicant testified that in addition to pain in his right hand, he also had pain in his knee as a result of bumping into the steering wheel when his vehicle was hit. Subsequent to the