Kulwinder Kaur v. Arch Insurance Company, 2017 ONFSCDRS 301

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 301

FSCO A15-005294

BETWEEN:

KULWINDER KAUR

Applicant

and

ARCH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Kimberly Parish

Heard: In person at ADR Chambers on October 31, 2017

Appearances: Ms. Kulwinder Kaur did not participate Ms. Kathryn Ball, legal counsel for Arch Insurance Company

Issues:

The Applicant, Ms. Kulwinder Kaur (“Ms. Kaur”), was injured in a motor vehicle accident on April 12, 2011 and sought accident benefits from Arch Insurance Company (“Arch”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Kaur, through her representative at the time, 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 Ms. Kaur’s Application for Arbitration be dismissed?
Is Arch entitled to its expenses for this Arbitration?

Result:

Ms. Kaur’s Application for Arbitration is dismissed.
Arch is entitled to its expenses in the amount of $2,000.00 (inclusive of fees, disbursements, and HST).

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held in person at the offices of ADR Chambers on May 9, 2016. Ms. Kaur did not attend the Pre-Hearing. She was represented at the Pre-Hearing by Mr. Ryan Naimark (“Mr. Naimark”) of Ryan Naimark Professional Corporation (“Naimark Law Firm”).

On August 9, 2016, a Pre-Hearing resumption was held by telephone conference. Ms. Kaur did not participate but was represented by Mr. Naimark. Hearing dates were scheduled for August 8-10, 2017.

A motion record dated May 9, 2017 was filed by Naimark Law Firm. Arbitrator Drory issued a letter and an Order dated July 19, 2017 which was sent by regular and registered mail to Ms. Kaur at her last known address. The letter advised that Naimark Law Firm had been removed as her legal counsel for this Arbitration. The letter further advised Ms. Kaur she was self-represented for this Arbitration. The letter noted the dates for the Hearing as October 31-November 2, 2017.

Motion to Dismiss

On October 31, 2017, Ms. Kaur failed to attend the Hearing.

The Insurer’s counsel, Ms. Ball, raised an oral motion requesting this Application for Arbitration be dismissed as Ms. Kaur failed to attend the original Pre-Hearing, the resumption of the Pre-Hearing, and the Hearing.

Ms. Ball provided the Insurer’s cost submissions for legal expenses at the Legal Aid Tariff rates with a break-down as follows:

D’Arcy McGoey (Tier 3 Lawyer) 2.9 hours at $136.43/hour = $395.64
Kathryn Ball (Tier 1 Lawyer) 56.7 hours at $109.14/hour = $6,188.23
Jochen Bobris (Law Clerk) 12.4 hours at $32.37/hour = $401.38
HST on legal fees = $908.08
Ms. Ball’s attendance fee at the Hearing including travel time = $697.84

The Insurer is claiming legal fees in the amount of $8,591.17. The Insurer is claiming disbursements in the amount of $130.31. The total amount claimed by the Insurer for legal expenses against Ms. Kaur is $8,721.48.

ANALYSIS:

I am satisfied that Ms. Kaur was given notice of all of the proceedings related to her Arbitration at her last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in her absence.

Ms. Kaur bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claims, this Arbitration is dismissed.

As Ms. Kaur failed to attend the Hearing on the first day, the Hearing did not proceed for the remaining two scheduled days. The Insurer submitted that 72 hours have been incurred on legal fees plus Ms. Ball’s attendance at the Hearing. Ms. Kaur did not attend the Pre-Hearing, the Pre-Hearing resumption, and the Hearing. It appears that she has abandoned her claim. There has been unnecessary time and money spent by the Insurer in defending this claim that was initiated by Ms. Kaur through her prior legal counsel. I find that Arch is entitled to some of its expenses having spent time preparing for the initial Pre-Hearing, the resumption of the Pre-Hearing, and the Hearing. In assessing the legal fees, I find a fair and reasonable amount to be awarded for expenses is $2,000.00 (inclusive of fees, disbursements, and HST).

EXPENSES:

Arch is entitled to expenses for this Arbitration fixed in the amount of $2,000.00 (inclusive of fees, disbursements, and HST).

November 17, 2017

Kimberly Parish Arbitrator

Date