(Jan) Wakeel Ahmed v. Allstate Insurance Company of Canada, 2017 ONFSCDRS 175

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 175

FSCO A16-002468

BETWEEN:

(JAN) WAKEEL AHMED

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Arbitrator Paulina Gueller

Heard:

In person at ADR Chambers on May 30, 2017

Appearances:

No one appeared for Mr. (Jan) Wakeel Ahmed

Ms. Lori Trinh participated on behalf of Allstate Insurance Company of Canada

Mr. Ryan Kirshenblatt represented Allstate Insurance Company of Canada

Issues:

The Applicant, Mr. (Jan) Wakeel Ahmed, was injured in a motor vehicle accident on February 27, 2013, and sought accident benefits from Allstate Insurance Company of Canada. (“Allstate”), payable under the Schedule. ¹ The parties were unable to resolve their disputes through mediation, and Mr. Ahmed, through his representative, 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:

Should Mr. Ahmed’s Application for Arbitration be dismissed?
Is Allstate entitled to its expenses of this proceeding?

Result:

Mr. Ahmed’s Application for Arbitration is dismissed.
Allstate is entitled to its expenses of this Arbitration proceeding in the amount of $1,964.35, inclusive of all fees, disbursements, and HST.

EVIDENCE AND ANALYSIS:

Dismissal

The Applicant submitted an Application for Arbitration on March 24, 2016.

Two Pre-Hearing discussions in this case were held on November 15, 2016 and March 9, 2017. The Applicant did not attend.

The Insurer raised a Motion to dismiss this Application for Arbitration. The Insurer submitted that the Applicant has showed disregard for the process as he failed to attend the Pre-Hearings; instruct his counsel; and attend today’s Hearing.

Rule 37.9 of the Dispute Resolution Practice Code (“DRPC”) states:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the 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 in the proceeding.

I am satisfied that the notices sent to the Applicant complied with the requirements of Rule 9.1(c) of the DRPC and Section 6 of the Statutory Power and Procedures Act. Notwithstanding, the Applicant did not attend the two Pre-Hearings or the Hearing.

Pursuant to Rule 37.9 of the DRPC, the Arbitration Hearing proceeded in the Applicant’s absence.

The Applicant bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claims, this Application for Arbitration is dismissed.

EXPENSES:

The Insurer requested the costs of the Arbitration process, but did not provide a Bill of Costs. The Insurer stated that the claim for fees and disbursements would be in the amount of $7,999.19 (to include counsel and the law clerk’s legal work, plus $464.35 for disbursements).

However, the Insurer would claim the amount of $3,394.99 for costs and disbursements, calculated at the Legal Aid rate, as per the following detail:

a) $2,930.64 for 19.6 hours of counsel’s legal work, including HST;

b) $464.35 for disbursements related to Medical Records, attendance fees, copies, fax, etc.

The relevant criteria for the Arbitrator when awarding expenses to a party, if the Arbitrator is satisfied that the award of expenses is justified, is set out in Rule 75.1 and 75.2 of the DRPC as follows:

The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

(a) each party's degree of success in the outcome of 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.

In awarding expenses, I am taking into consideration the relevant criteria, which includes the party’s success in the proceedings and the conduct of the party that prolonged the proceeding unnecessarily. The Applicant failed to pursue his claim, instruct his counsel, and failed to attend the proceedings.

The Insurer is the successful party and is entitled to its expenses. I consider the time that Insurer’s counsel spent preparing responses to the Application for Arbitration, consulting with its client, and preparing and attending at two in person Pre-Hearings and the Hearing.

Therefore, I find it is reasonable to grant some legal expenses. Accordingly, I exercise my discretion pursuant to subsection 282(11) of the Insurance Act, and order the Applicant pay the Insurer’s expenses in the amount of $1,964.35 ($1,500.00 for legal work plus $464.35 for disbursements), inclusive of HST.

This amount is payable forthwith.

June 19, 2017

Paulina Gueller Arbitrator

Date