Shivain Persad v. Wawanesa Mutual Insurance Company, 2017 ONFSCDRS 113

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 113

FSCO A15-008433

BETWEEN:

SHIVAIN PERSAD

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Thérèse Reilly

Heard:

In person at ADR Chambers on March 29, 2017

Appearances:

Ms. Shivain Persad did not participate

Mr. Paul Barnes participated for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ms. Shivain Persad, was injured in a motor vehicle accident on February 14, 2014. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”) payable under the Schedule.¹ Disputes arose as to whether or not certain benefits were payable. The parties were unable to resolve their disputes through mediation, and Ms. Persad applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this Hearing is:

Is Ms. Persad’s Application for Arbitration against Wawanesa dismissed on a without cost basis?

Result:

Ms. Persad’s Application for Arbitration against Wawanesa is dismissed without costs.

EVIDENCE AND ANALYSIS:

Ms. Persad filed an Application for Arbitration against Wawanesa for medical benefits for chiropractic treatment provided by Dr. Vyvyen of Prime Health Care for $3,407.48, dated February 20, 2014, and for $2,208.50, dated June 12, 2014. She claimed the costs of an examination for $2,152.00 for a Functional Abilities Evaluation as per OCF-18, dated December 29, 2014, completed by Dr. Justin Guy of Assess Medical and $1,979.36 for Psychological Assessment as per OCF-18, dated April 14, 2014, completed by Dr. Eugene W. Hewchuk of General Med Inc. Ms. Persad’s impairment and whether it was within the Minor Injury Guideline was also in issue.

A Pre-Hearing in this matter was held in person at 9:00 a.m. on August 26, 2016, and a resumption of the Pre-Hearing was also held by telephone on October 14, 2016. The Applicant did not attend either proceeding. A letter was sent to all parties on October 14, 2016, setting Hearing dates of March 29 to 31, 2017. A Motion was subsequently made by the Applicant’s legal representative to be removed from the record and heard on December 8, 2016. An Order, dated December 8, 2016, was issued removing the Applicant’s legal representative from the record. On this date, the Applicant became self-represented. The December 8, 2016 letter which enclosed the Order removing the representative from the record, was sent to all parties and sent to the Applicant by registered and regular mail. The December 8, 2016 letter confirmed that the Hearing in this matter was scheduled for 10:00 a.m. on March 29, 2017.

The Hearing proceeded at 10:00 a.m. on March 29, 2017 in person at ADR Chambers.

Ms. Persad did not attend and had not attended after 45 minutes. I was unable to contact her at the telephone number contained in the records of ADR Chambers. The Hearing proceeded in her absence pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“the Code”). I am satisfied that Ms. Persad was given notice of the Hearing at her last known address contained in the records of ADR Chambers as required by Rule 5.7 of the Code.

I was provided by the Insurer a copy of a letter from Wawanesa to the Applicant, dated December 12, 2016. I was also provided a copy of a letter from the Applicant to the Insurer, dated January 19, 2017, and several emails exchanged between the Applicant and the Insurer, dated January 25, 2017. I was advised by counsel for the Insurer that on December 12, 2016, Wawanesa had confirmed to the Applicant that a Hearing was scheduled to proceed on March 29, 2017 and to avoid the scheduled Hearing, the Insurer was making an offer under Rule 76 of the Code to the Applicant that it was prepared to agree to a dismissal of the Application for Arbitration without costs. The offer was open for acceptance by the Applicant until 5:00 p.m. on February 24, 2017.

By letter, dated January 19, 2017, the Applicant advised the Insurer she was prepared to accept the offer and agree to a dismissal of the Application for Arbitration without costs.

The Insurer, by reply email dated January 25, 2017, advised the Applicant that the Insurer had received her letter of acceptance of the offer but noted that the letter had not been signed. The Applicant, by reply email, offered to sign and resend the letter. The Insurer in their reply email of January 25, 2017 advised that it would attend the Hearing on March 29, 2017 and would advise the Arbitrator that the Applicant had accepted their offer before the deadline of February 24, 2017 and the Insurer was agreeable to the dismissal of the Application for Arbitration without costs.

I am satisfied based on a review of the written communications between the Applicant and the Insurer and on hearing the submissions of the Insurer, that the Applicant gave instructions to accept the offer made by the Insurer to a without cost dismissal of the Application for Arbitration. Accordingly, the Application for Arbitration is dismissed without costs.

EXPENSES:

The Insurer agreed to a dismissal of the Application for Arbitration without costs. As such, no costs are awarded.

April 17, 2017

Thérèse Reilly Arbitrator

Date