Neutral Citation: 2017 ONFSCDRS 194 FSCO A14-010214

BETWEEN:

LILLIAN SZILAGY Applicant

and

INTACT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Paulina Gueller

Heard: In person at ADR Chambers on June 7, 2017

Appearances:

Ms. Kristy Kerwin, Lawyer, participated by teleconference for Ms. Lillian Szilagy Mr. Christopher Missiuna, Lawyer, participated for Intact Insurance Company Ms. Roxanne Hector on behalf of Intact Insurance Company

Issues:

The Applicant, Ms. Lillian Szilagy, was injured in a motor vehicle accident on May 27, 2012, and sought accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Szilagy, through her 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 issue in this Hearing is:

Should Ms. Szilagy’s Application for Arbitration be dismissed, without costs?

Result:

Ms. Szilagy’s Application for Arbitration is dismissed, without costs.

EVIDENCE AND ANALYSIS:

The Applicant submitted an Application for Arbitration on December 23, 2014.

Two Pre-Hearing discussions in this case were held on August 12, 2015 and October 26, 2016.

By letter, dated October 26, 2016, Arbitrator Savage issued an Order that the Applicant’s attendance at the Hearing scheduled for June 7, 2017 was peremptory.

At the commencement of the Hearing, no one appeared for the Applicant. The Hearing resumed after 30 minutes, and proceeded in the Applicant’s absence.

The Insurer raised a Motion, requesting a dismissal of this Application for Arbitration, without costs, pursuant to Rule 65.1 of the Dispute Resolution Practice Code (“DRPC”).² The Insurer submitted that it made an Offer to Settle on May 24, 2017, which the Applicant`s counsel accepted by email on June 3, 2017. The Insurer also submitted that the issues in dispute at this Hearing are:

Is the Applicant entitled to receive a weekly Income Replacement Benefit in the amount of $400.00 per week from June 2, 2012 to date and ongoing?
What is the quantum of the weekly Income Replacement Benefit that the Applicant is entitled to receive?
Is the Applicant entitled to the following Medical Benefits for physiotherapy from The Doctors Office Physical Therapy:
1. $1,288.14, dated November 1, 2013;
2. $1,062.14, dated February 7, 2014?
Is the Insurer liable to pay a Special Award because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Arbitration?

The Insurer also submitted that:

a) As of today, the Insurer has not received the Settlement Disclosure Notice (“SDN”) signed by the Applicant;

b) As per Arbitrator Savage’s Order issued on October 26, 2016, it was peremptory the Applicant attend today;

c) The settlement conversation with the Applicant’s counsel involved a request from the Applicant’s counsel to adjourn the Hearing, but the Insurer opposed the adjournment;

d) The parties agreed to a dismissal of the Application for Arbitration on consent.

After hearing the Insurer’s submissions, I teleconferenced the Applicant’s counsel into the Hearing. The Insurer repeated its submissions.

The Applicant’s counsel responded: a) confirming that both parties agreed to a dismissal, without costs; b) she did not attend today’s Hearing because there was an understanding with the Insurer’s counsel that he was going to act as an agent for both parties to request a dismissal on a without costs basis; and c) the Applicant did not sign the SDN.

Rule 37.9 of the 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.

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

While I was writing the decision, I considered the application of Rule 69.4 of the DRPC.

Rule 69.4 of the DRPC states:

Where a hearing has commenced and an adjudicator has not yet issued an order finally disposing of all the issues in dispute, either party may request an adjudicator to issue an order on consent of the parties dismissing the proceeding. The adjudicator shall determine the documentation required before issuing the order. The request shall be made not more than 20 days after settlement is reported to the adjudicator by either of the parties.

Having heard submissions from the parties, I find that I have no objective evidence confirming that this matter has been settled, or that the Applicant has agreed to settle her claim for accident benefits. Therefore, Rule 69.4 of the DRPC is not applicable to this case.

Dismissal

Further, I am satisfied that the notices sent to Ms. Szilagy complied with the requirements of Rule 9.1(c) of the DRPC and Section 6 of the Statutory Powers Procedure Act.³

I find that the Applicant: a) did not comply with Arbitrator Savage’s Order to attend today’s Hearing; b) knew about the Hearing and the consequences for not attending; and c) did not demonstrate her intent to continue with this Arbitration process.

As no evidence was presented before me to support the Applicant’s claims, this matter is dismissed.

EXPENSES:

The parties agreed that the dismissal was on a without costs basis. Therefore, no Order for expenses is made.

July 10, 2017

Paulina Gueller Arbitrator

Date

Financial Services Commission of Ontario