Neutral Citation: 2017 ONFSCDRS 132 FSCO A15-005870

BETWEEN:

TONET SEGREE Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Caroline King Heard: February 6, 2017, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No-one appearing for Tonet Segree Stacey Iordanis for Royal & SunAlliance Insurance Company of Canada attended the hearing.

Issues:

The Applicant, Tonet Segree, claims she was injured in a motor vehicle accident on April 19, 2014. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ A dispute arose about benefits claimed. The parties were unable to resolve their disputes through mediation, and Ms. Segree applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues in Dispute:

Is Ms. Segree entitled to receive a non-earner benefit in the amount of $185.00 per week from October 14, 2014 and ongoing?
Is Ms. Segree entitled to receive a medical benefit for physiotherapy in the amount of $2,679.05, dated September 5, 2014?
Is Royal liable to pay Ms. Segree’s expenses in respect of the arbitration?
Is Ms. Segree liable to pay Royal’s expenses in respect of the arbitration?
Is Ms. Segree entitled to interest for the overdue payment of benefits?

Result:

Ms. Segree’s claims are dismissed.
Ms. Segree is liable to pay Royal’s expenses in respect of the arbitration.

EVIDENCE AND ANALYSIS:

Neither the Applicant, nor anyone representing her, appeared at FSCO on the February 6, 2017 hearing date and therefore no evidence was submitted by or on behalf the Applicant. The Insurer asked that this case be dismissed, since the Applicant has submitted no evidence, and made no arguments to show that she is entitled to the benefits in dispute.

The onus is on the Applicant to prove her claims on the balance of probabilities. For the reasons that follow, I find that: the Applicant was served with reasonable notice of the hearing; had a reasonable opportunity to participate in the resolution of her application; and the Applicant has not proved her claims on the balance of probabilities.

Did the Applicant receive proper notice of the hearing?

The Dispute Resolution Practice Code² (the ‘DRPC’), and the Statutory Powers and Procedures Act, (‘SPPA’),³ require that a party be given reasonable notice of a hearing. FSCO records include the following information:

FSCO Notices:

The Applicant attended the pre-hearing discussion at FSCO on February 10, 2016 together with her counsel from D’Angela Fox Vanounou LLP.
On or about February 10, 2016, FSCO’s pre-hearing letter was mailed to the Applicant and her counsel at D’Angela Fox Vanounou LLP. The letter listed the date, time, and location of the hearing. On page 5, paragraph 3, the letter sets out that:

Where a notice of hearing has been sent to a party and a party does not attend, the arbitrator may proceed without a 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.

On or about February 12, 2016, FSCO sent out its Notice of the Hearing to the Applicant’s then counsel. This notice provided information about the hearing date, time, and location. This notice contained information about the consequences of not attending the hearing. The notice set out that:

You may attend this hearing in person, and/or be represented. If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.

I am satisfied that the Applicant was provided with the requisite reasonable notice of the hearing as required by the DRPC and the SPPA. This finding is based on 1) FSCO’s Notice of Hearing sent to the Applicant’s counsel, which provided the Applicant with notice of the time, date, and location of the hearing, as well as provided her with notice that if she did not attend, the hearing could proceed without the Applicant’s participation; and 2) The Notice of Hearing sent out as a result of the information provided in the Pre-Hearing Letter which contained essentially all the same critical information.

Did the Applicant have a reasonable opportunity to participate in the resolution of her application?

The Applicant was provided with a proper Notice of Hearing. However, after this notice was provided, FSCO permitted her counsel to be removed from the record. For the reasons set out below, I find that the Applicant was accorded her natural justice rights to participate in the hearing. She was given proper notice of the hearing, she was provided with information that her counsel had stopped representing her well in advance of the hearing, she was provided information about the lawyer referral service should she choose to secure new legal representation.

Applicant’s Counsel removed from the record:

The Applicant’s Counsel served and brought a motion to be removed from the record as the Applicant’s counsel. On or about December 2, 2016, the Applicant’s counsel from D’Angela Fox Vanounou LLP, wrote to the Applicant (copy to FSCO). The subject line of the letter is: “Motion to Get Off Record/Stop Representing You”. The letter informed the Applicant that due to a break-down in solicitor/client relationship, the firm:

would not be representing the Applicant at the hearing, and
that the hearing was proceeding on February 6 & 7, 2017. The letter provided the Applicant information about the Lawyer Referral Service offered by the Law Society of Upper Canada.

On December 16, 2016, Arbitrator Idemudia wrote to Mr. Saffie of D’Angela Fox Vanounou LLP, that based on his compliance with Rule 9.7 of the DRPC, the Arbitrator was ordering D’Angela Fox Vanounou LLP be removed as legal representative for the Applicant. It confirmed that the Applicant would be self-represented and confirmed the hearing date, time, and location. This letter was copied to the Applicant so that she was fully informed of the decision and that the hearing would be proceeding as scheduled.

Further Notice Given to the Applicant:

Additional effort was made by FSCO to ensure that the Applicant was given notice of the hearing and be given every opportunity to participate in the hearing process. For example:

FSCO’s records show that on January 31, 2017, FSCO’s Case Administrator mailed the Notice of Hearing directly out to the Applicant.
On February 6, 2017, the hearing was scheduled to commence at 10:00 a.m. Only the Insurer’s counsel attended the hearing. I stood the hearing down to provide the Applicant further opportunity to participate in the hearing. FSCO’s Case Administrator called the Applicant’s phone number and spoke with a woman who identified herself as the Applicant’s daughter. This woman was advised that the hearing would be held down until 12 noon to give the Applicant an opportunity to attend. She advised the Case Administrator that she would try to get a hold of her mother about the hearing.
The Applicant did not attend the hearing. To date the Applicant has not contacted FSCO regarding her hearing.

Based on the information provided above, I find that the Applicant was given multiple notices of hearing and had been given a reasonable opportunity to participate in the resolution of the hearing. The hearing proceeded in the Applicant’s absence in accordance with the terms set out in the notices.

Issues in Dispute

The Applicant did not attend the hearing or adduce any evidence in support of her application, therefore she has not proved on the balance of probabilities that she is entitled to the disputed issues (benefits claimed) in her application. This means that her claims are dismissed.

Is the Insurer entitled to Expenses?

The Insurer requested its expenses as it needlessly incurred costs to prepare for and to attend the hearing. The Applicant was provided with information about the recovery of legal expenses on page 4 of the February 10, 2016 Pre-Hearing letter.

The Insurer needlessly expended time and effort to prepare for the hearing and attending at the hearing. The Insurer was wholly successful at the hearing, and it needlessly incurred costs. I find it appropriate to grant the Insurer’s requests for expenses. The Applicant shall pay to the Insurer $1,500.00 in expenses on or before June 8, 2017.

May 2, 2017

Caroline King Arbitrator

Date

Financial Services Commission of Ontario