Kanagasabai v. Unifund Assurance Company, 2017 ONFSCDRS 218

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 218

FSCO A15-002429 & A15-002430

BETWEEN:

MURALITHARAN KANAGASABAI and KALAIAYARASI NANTHAKUMAR

Applicants

and

UNIFUND ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Kimberly Parish

Heard:

In person at ADR Chambers on July 17, 2017

Appearances:

Mr. Muralitharan Kanagasabai and Kalaiayarasi Nanthakumar did not participate

Mr. David Levy for Mr. Muralitharan Kanagasabai and Ms. Kalaiayarasi Nanthakumar

Ms. Be Nazeer Damji for Unifund Assurance Company

Issues:

The Applicants, Mr. Muralitharan Kanagasabai and Ms. Kalaiayarasi Nanthakumar (“Applicants” or individually “MK” and “KN”), alleged that they were injured in a motor vehicle accident on September 16, 2012 and sought accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicants, through their representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Should David Levy Law Office be removed as the solicitors of record for this Arbitration?
Should the Applicants’ Applications for Arbitration be dismissed?
Is Unifund entitled to its expenses of the Arbitration proceeding?

Result:

David Levy Law Office is removed as the solicitors of record for this Arbitration.
The Applicants’ Applications for Arbitration are dismissed.
The Applicants are liable to pay to Unifund its expenses of this Arbitration in the amount of $9,500.00 plus HST, as follows: Mr. Muralitharan Kanagasabai shall pay $4,500.00 plus HST, and Ms. Kalaiayarasi Nanthakumar shall pay $5,000.00 plus HST.

EVIDENCE AND ANALYSIS:

Background and Chronology

An in person Pre-Hearing was held for both related files at the offices of ADR Chambers on August 6, 2015 at 9:30 am. The Applicants attended the Pre-Hearing with Ms. Sukalsky, legal counsel from David Levy Law Office. Ms. Maggie Avila participated on behalf of Unifund and was represented by Ms. Morris, legal counsel from Reisler Franklin LLP. The parties were unable to resolve the issues in dispute and dates were originally scheduled for a Hearing from September 20 - 23, 2016.

There was an adjournment of the Hearing requested on consent, which was granted by Arbitrator Anschell on September 8, 2016. The Hearing was adjourned to July 17 - 20, 2017.

Removal of Applicant’s Legal Representative as the Lawyer of Record

At the Hearing, I heard oral submissions from Mr. Levy of David Levy Law Office, who was representing the Applicants. Mr. Levy stated on Thursday July 13, 2017 his office received a telephone call from the Applicants and Mr. Levy stated that MK advised that he no longer wanted David Levy Law Office to represent the Applicants for this Arbitration. Mr. Levy had a further telephone conversation with MK on Friday July 14, 2017. Mr. Levy stated that his office received nothing further in writing from the Applicants.

On Friday July 14, 2017, David Levy Law Office hand delivered a letter to the home address of the Applicants which re-iterated the telephone conversations Mr. Levy had with MK on July 13, 14, 2017 with regard to the Applicants no longer wanting David Levy Law Office to represent them in this Arbitration. Mr. Levy advised in his letter of July 14, 2017 that both Applicants were required to attend the Arbitration Hearing scheduled to commence July 17 - 21, 2017 and the consequences which could result should they fail to attend.

Mr. Levy requested that David Levy Law Office be removed as the solicitors of record for this Arbitration. Mr. Levy stated there has been a break-down in the solicitor-client relationship. Mr. Levy is unable to obtain further instruction, and the Applicants failed to attend the scheduled Arbitration Hearing, even though they were both provided with ample notice of the scheduled Hearing and advised that their attendance was required.

The Insurer took no position.

Based on the submissions, I allowed David Levy Law Office to be removed as the solicitors of record for this Arbitration. Mr. Levy stated written correspondence was hand delivered to his clients on Friday July 14, 2017. Both Applicants had failed to attend the scheduled Hearing as required, and as a result, Mr. Levy was unable to obtain further instruction with respect to this Arbitration. I rely on Rules 1.1, 81.1 of the Dispute Resolution Practice Code.²

The Dismissal

As the Applicants failed to attend the scheduled Hearing for this matter, the Insurer’s Counsel,

Ms. Damji raised an oral Motion requesting the Applications for Arbitration be dismissed with costs awarded against both Applicants.

Rule 37.9 of the Dispute Resolution Practice Code 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 Applicants were provided notice of the Hearing. The Applicants did not attend the scheduled Hearing and the Hearing proceeded in their absence. The Applicants bear the onus of proving entitlement to the claimed benefits. Since they did not appear at the Hearing and no evidence was presented to support their claims, their Applications for Arbitration are dismissed.

Ms. Damji provided a Bill of Costs for fees and disbursements incurred by the Insurer up to the date of the Arbitration. The Bill of Costs represented both files and included a total amount of $13,260.36 for fees and disbursements, inclusive of HST.

The break-down which has been provided in the Bill of Costs includes:

161 total hours, which included the time spent on correspondence with Applicants counsel, other non-parties, and Unifund. In addition, there was also a Pre-Hearing and a resumption of Pre-Hearing held for each file. A break-down of the hours as noted in the Bill of Costs is as follows: 4 lawyers (73.4 hours - $8,506.03), two law clerks (79.4 hours - $2,570.18), and two students-at-law (8.3 hours - $537.35) plus HST
Disbursements in the amount of $21.59 plus HST for photocopying

Ms. Damji stated a resumption of Pre-Hearing was held on August 30, 2016 to address productions which the Insurer requested an Order for both Applicants to provide the requested productions. Ms. Damji stated the Bill of Costs represented the total time spent on both files and did not distinguish the time spent on each file. Ms. Damji stated that the issues in dispute for both files were similar but the issues were a bit more complex on KN’s file and slightly more time would have been allocated to her file.

EXPENSES:

The Bill of Costs provided does not distinguish the time spent specifically for each file, nor was there a detailed break-down for the allocation of hours spent working on each file at the various stages and specifically who performed what work on each of the files. There was a resumption held on August 30, 2016 and an Order was issued for the Applicants to provide productions to the Insurer. Both files were scheduled together for a four day Hearing. However, the Hearing did not continue past the first day and both claims were dismissed. The issues in dispute for both files, as noted in both Pre-Hearing letters, dated August 6, 2015, appear to be very similar. The issues in dispute for both files included: income replacement benefits, treatment plans for chiropractic treatment and massage, and the Minor Injury Guideline.

Based upon the information I have noted above, I find $9,500.00 plus HST is a justifiable and reasonable amount to be awarded for costs against both Applicants for this Arbitration.

The breakdown of costs is as follows: Mr. Muralitharan Kanagasabai shall pay $4,500.00 plus HST, and Ms. Kalaiayarasi Nanthakumar shall pay $5,000.00 plus HST.

August 14, 2017

Kimberly Parish

Arbitrator

Date