Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 171
FSCO A13-004169
BETWEEN:
YONG WANG
Applicant
and
UNIFUND ASSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Arbitrator Benjamin Drory
Heard:
In person at ADR Chambers on May 1, 2017
Appearances:
Mr. Yong Wang participated
Ms. Jocelyn Tatebe, Lawyer, participated for Unifund Assurance Company
Issues:
The Applicant, Mr. Yong Wang, was injured in a motor vehicle accident (“MVA”) on March 5, 2010. He sought accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Wang, through his representative, at that time, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this Hearing are:
Is Mr. Wang entitled to Attendant Care Benefits (“ACBs”) at a rate of $993.39 per month for the period from March 5, 2010 to March 5, 2012?
Is Mr. Wang entitled to Housekeeping and Home Maintenance Benefits (“HHMBs”) at a rate of $100.00 per week for the period from March 5, 2010 to March 5, 2012?
Is Mr. Wang entitled to interest on overdue benefits?
Is either party entitled to its expenses of the Arbitration?
Result:
Mr. Wang is not entitled to ACBs for the period from March 5, 2010 to March 5, 2012.
Mr. Wang is not entitled to HHMBs for the period from March 5, 2010 to March 5, 2012.
Mr. Wang is not entitled to interest on overdue benefits.
Unifund is entitled to its expenses of the Arbitration in the amount of $2,000.00.
EVIDENCE AND ANALYSIS:
Mr. Wang was self-represented at the Hearing. When he initiated his Application for Arbitration, he was represented by counsel; however, his counsel was removed from the record as his legal representative in June 2016. The Applicant was assisted with language interpretation during the Hearing by a Mandarin interpreter.
At the outset of the Hearing, the issues were clarified with the parties. The Applicant wished to have the determination of Catastrophic Impairment (“CAT”) included as an issue in dispute. The Insurer objected to the inclusion of CAT as an issue, as it had never been mediated, and they also had not been given notice more than 30 days before the Hearing of the Applicant’s intention to raise that issue in this proceeding. The Insurer also advised the Applicant failed to attend several Insurer Examinations for the purpose of assessing CAT. It was the Insurer’s position that the issue of CAT would need to proceed through the Licensing Appeal Tribunal (“LAT”), if at all. I agreed with the Insurer’s position that CAT had never been mediated through FSCO, and was also not identified as an issue in dispute in any Pre-Hearing letter. Accordingly, the issue of CAT could not be addressed in this Hearing.
At the Hearing, the parties agreed that issues formerly in dispute respecting Medical Benefits and Costs of Examinations had been previously resolved. Only ACBs and HHMBs remained in dispute. The Insurer took the position that both benefits could only be disputed to the 2-year mark following the MVA in this proceeding, to the date of March 5, 2012. Determination of CAT is a necessary pre-requisite to claiming either benefit beyond the 2-year mark, and the Applicant had not been deemed CAT, and could not be within this proceeding. The Applicant wished to have both benefits considered to date. I agreed with the Insurer’s position that both issues could only be in dispute up to March 5, 2012 for the purposes of this proceeding.
The Insurer submitted a Preliminary Motion, pursuant to Rule 39 of the Dispute Resolution Practice Code (“DRPC”), that as the Applicant had not served them with any documents for the Hearing at least 30 days before the Hearing, as a result, he should not be able to use any documents as evidence during the Hearing. The Insurer also submitted that there were no extraordinary circumstances present that would permit me to allow an exception to admit any such documentation into the Hearing as evidence, under Rule 39.2 of the DRPC. The Insurer advised that the Applicant attended three in-person Pre-Hearings, and was provided many opportunities to serve his evidence and to be aware of the Rules.
The Applicant responded that he had no answer. He didn’t know of the Rule, but suggested he thought he had submitted a 2016 letter from a doctor respecting his OCF-19, as ADR Chambers had been cc’d on an email.
I determined that Rule 39 of the DRPC had not been followed, and accordingly, the Applicant would not be allowed to submit documentary evidence into the Hearing, as none had been submitted in accordance with the DRPC. Copying ADR Chambers on an email was insufficient to meet the Rules.
The Insurer commenced a second Preliminary Motion under Rule 41 of the DRPC that they had not been notified at least 30 days before the Hearing regarding who the Applicant intended to call as witnesses. The Insurer advised that the Applicant wished to call Dr. Hanna regarding the CAT issue; but CAT was not in dispute, and Dr. Hanna’s report was irrelevant to the issues of ACB and HHMB. None of the witnesses the Applicant wished to call could give any evidence regarding the issues in dispute. All of the witnesses noted in the Applicant’s April 20, 2017 letter to the Insurer (12 days before the Hearing) were respecting assessments completed in 2015 and 2016, and irrelevant to the period before March 2012.
The Applicant responded only that the case continues to the present.
I agreed with the Insurer’s position, and determined that in accordance with Rule 41 of the DRPC, the Applicant could not call witnesses in this proceeding; he could only speak on his own behalf.
Mr. Wang’s Testimony
The Applicant stated through the interpreter that the MVA caused lots of pain, suffering, and illness. He couldn’t work, he has disability, is constantly in pain, and has suffered mental harm and depression. The damage from the MVA has caused suffering in his life. He is homeless, and his pain continues today. He takes 8 kinds of medicine every day. He is unable to work because of the damage to his physical and mental health. He planned to support his daughter through university, but because of the damage, he can’t provide that support. There is lots of pressure mentally, and he doesn’t even consider himself a good father. He can’t even tell his parents who are in their 80s about what is happening. He tells them he is well, although his condition is very bad. He hadn’t been to see his parents in over 10 years, and feels badly about this. The mental damage was “huge” because he has a responsibility to support his parents, but now cannot do anything.
When prompted whether he had anything else to add, the Applicant advised he did not.
The Insurer opted not to cross-examine the Applicant, but instead brought a Motion to dismiss the matter in accordance with Rule 68 of the DRPC.
Rule 68 states as follows:
Dismissal of proceeding without hearing 68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith. 68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1. 68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:
(a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and
(b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.
68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.
The Insurer argued that the Applicant had provided no evidence respecting the ACB and the HHMB. Nothing he spoke to was based on care he received after the MVA. He had presented no evidence to support his case, and the onus was upon him to do so. The Insurer referred me to the FSCO cases of McKnight and Guarantee2 and Alves and State Farm.3 It submitted that McKnight involved the pre-September 2010 Schedule, like the present case, and as such, was relevant law respecting the pre-2010 “incurred” rules regarding ACBs and HHMBs, and that an Applicant needs to show what care was needed both before and after the MVA, and what services were incurred. The Insurer asserted that the Applicant gave no oral evidence of his pre- or post-MVA attendant care and housekeeping needs, nor of the identity of the service providers or the amounts incurred. It submitted that Alves was a more recent case where a self-represented Applicant participated in the Hearing by Skype; that Applicant also did not provide any written documentation to support her claims, and the Arbitrator dismissed her case based on lack of evidence.
The Applicant responded that the cases had no relevance to his case.
Following a review of the cases and Rule 68 of the DRPC itself, I determined that it was appropriate to dismiss the case, although not specifically on the basis of Rule 68 of the DRPC. I was not satisfied that the case was brought in bad faith.
However, I am dismissing the case as the Applicant has not met the burden of proof that he is entitled to ACBs and HHMBs. The onus is always on an Applicant to prove their case, and the Applicant submitted no evidence to establish the merits of his case respecting the issues in dispute.
The Applicant provided no evidence to support his claim for ACBs and HHMBs. In a Hearing based on evidence, the onus is on an Applicant to produce credible evidence to substantiate his/her claims. Where no such evidence is produced, the claim must fail.
EXPENSES:
Following my oral dismissal of the case, I asked the parties to make any submissions respecting entitlement to expenses for the Arbitration, in accordance with Rules 75 to 79 of the DRPC.
Submissions
The Insurer submitted that it was entirely successful in the proceeding. It provided to me evidence of a written Rule 76 Settlement Offer it made to the Applicant on the business day before the Hearing.4 The Applicant did not accept this offer, and opted to proceed with the Hearing instead. The Insurer submitted that there were no novel issues in dispute, and no intentional improper conduct by the Applicant (noting only his failure to advise the Insurer of his intended witnesses).
The Insurer also submitted a Bill of Costs respecting the expenses it was claiming, in the total amount of $14,838.59.5 The Bill of Costs reflected 149 hours of work by various members of Ms. Tatebe’s firm on the file, and $1,500.00 in disbursements.
The Applicant said he had no problem with the submission of the Bill of Costs.
Analysis
The criteria I am bound to consider are set out in Rules 75 and 76 of the DRPC. Those criteria include:
(a) each party’s degree of success in the outcome of the proceeding;
(b) any written offers to settle in accordance with Rule 76;
(c) whether novel issues are raised in the proceeding;
(d) 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;
(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.
The wording of the Rule is such that these are the only factors I ought to consider. Although various factors made the Applicant a sympathetic figure, he is not entitled to be excepted from the Rules of the Tribunal.
I am satisfied, per criteria (a), that the Insurer was completely successful in this proceeding. I also accept that the Insurer’s email of April 28, 2017 was a valid Offer to Settle in accordance with Rule 75.2(b) of the DRPC, and should appropriately be taken into account.
It is clear that the Insurer’s counsel put great efforts into preparing for the Hearing, including participating in three Pre-Hearings and a great deal of Pre-Hearing correspondence, as well as trying to settle the case, which included an in-person effort the day before the Hearing and even included two further attempts during the Hearing itself.
In the totality of the circumstances, I find it appropriate to award the Insurer expenses in the amount of $2,000.00.
June 19, 2017
Benjamin Drory
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 171
FSCO A13-004169
BETWEEN:
YONG WANG
Applicant
and
UNIFUND ASSURANCE COMPANY
Insurer
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. Wang is not entitled to Attendant Care Benefits for the period from March 5, 2010 to March 5, 2012.
Mr. Wang is not entitled to Housekeeping and Home Maintenance Benefits for the period from March 5, 2010 to March 5, 2012.
Mr. Wang is not entitled to interest on overdue benefits.
Unifund is entitled to its expenses of the Arbitration in the amount of $2,000.00.
June 19, 2017
Benjamin Drory
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Accidents On or After November 1, 1996, Ontario Regulation 403/96, as amended.
- McKnight and Guarantee Company of North America (FSCO A02-000299, October 28, 2003).
- Alves and State Farm Mutual Automobile Insurance Company (FSCO A13-005012, January 6, 2015).
- Exhibit 1: Email from Jocelyn Tatebe to Mr. Wang, Friday April 28, 2017 at 2:18 p.m., cc’ing Settlement Officer Stephanie Skoda.
- Exhibit 2: Unifund’s Bill of Costs—Amounts Claimed for Fees and Disbursements.