Neutral Citation: 2017 ONFSCDRS 33

FSCO A13-015159

BETWEEN:

AMINA HUSSEN Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Arbitrator Thérèse Reilly

Heard: In person at ADR Chambers on October 13, 2016 and November 29, 2016

Appearances: Ms. Amina Hussen did not participate Ms. Meredith Harper participated for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Ms. Amina Hussen, was injured in a motor vehicle accident on April 6, 2011. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”) payable under the Schedule.¹ Disputes arose as to whether or not certain benefits were payable. The parties were unable to resolve their disputes through mediation, and Ms. Hussen 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:

Is Ms. Hussen entitled to receive weekly non-earner benefits?
Is Ms. Hussen entitled to receive medical benefits?
Is Ms. Hussen entitled to receive attendant care benefits?
Is Ms. Hussen entitled to receive payments for costs of examination?
Is Ms. Hussen entitled to interest for the overdue payment of benefits?
Is Royal liable to pay Ms. Hussen’s expenses in respect of the Arbitration?
Is Ms. Hussen liable to pay Royal’s expenses in respect of the Arbitration?

Result:

Ms. Hussen’s claims in this Arbitration against Royal are dismissed.
Ms. Hussen is to pay expenses to Royal in the amount of $5,973.84, inclusive of all costs, disbursements and applicable taxes.

EVIDENCE AND ANALYSIS:

The Hearing in this case was originally scheduled to proceed commencing on October 13, 2016 at 10 a.m., in person, at ADR Chambers. A Somali interpreter, Mr. Mohamed Jama, attended at the Hearing. Ms. Hussen did not attend, and had not attended after 30 minutes. I was unable to contact her at the telephone number contained in the records of the Dispute Resolution Group (including ADR Chambers). Ms. Hussen is self-represented. Her representative was granted permission to withdraw as her representative of record, as is indicated in the Pre-Hearing Letter, dated September 2, 2016.

I was unable to satisfy myself; however, in this particular case that Ms. Hussen had been given proper notice of the Hearing scheduled for October 13, 2016. I therefore directed that the Hearing be resumed on November 29, 2016 at 11:00 a.m., at the offices of ADR Chambers and that Ms. Hussen be given notice of the resumed Hearing in accordance with the provisions of the Dispute Resolution Practice Code (“the Code”).

I sent a letter, dated October 13, 2016, to the Applicant by regular and registered mail that provided notice of the resumed Hearing to commence at 11:00 a.m. on November 29, 2016. A Booking Notice was also sent to the Applicant, providing notice of the Hearing on November 29, 2016 at 11:00 a.m. The letter and notice were sent to the Applicant at the last known address shown in the records of ADR Chambers. All items were returned unclaimed by the Applicant.

The resumed Hearing proceeded at 11:00 a.m. on November 29, 2016. Ms. Harper attended by telephone. Mr. Mohamed Abdallah was present to provide Somali interpretation services. Ms. Hussen again failed to attend the resumed Hearing on November 29, 2016 at 11:00 a.m. I waited 30 minutes. The Applicant had not attended after 30 minutes. I was again unable to contact her by telephone at the telephone number shown in the records of ADR Chambers.

The Hearing proceeded in her absence pursuant to Rule 37.7 of the Code.

I am satisfied that Ms. Hussen was given notice of the Hearing at her last known address contained in the records of the Dispute Resolution Group (including ADR Chambers) as required by Rule 5.7 of the Code.

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

EXPENSES:

I find that Royal, as the “successful party” within the meaning of subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664, is entitled to its expenses.

Royal provided a Bill of Costs in the total amount of $14,616.89 for fees, plus disbursements in the amount of $3,973.84, which includes a “$3,000.00 filing fee for the Insurer’s response”, for a total of $18,590.73.

With respect to the request for a $3,000.00 filing fee, section 7 of the Schedule to the Expense Regulation provides as follows with respect to an Insurer’s total assessment for Arbitrations, Appeals and Applications:

There may be awarded to an insurer the total of all amounts in respect of a claim by an insured person that are included under section 4 of Ontario Regulation 11/01 (Assessment of Expenses and Expenditures) made under the Financial Services Commission of Ontario Act, 1997 in determining the amount of the insurer’s total assessment for arbitrations under section 282 of the Act, total assessment for appeals under section 283 of the Act or total assessment for applications under section 284 of the Act, if the insured person, on or after March 1, 2006,

(a) refused or failed to submit to an examination relating to the claim under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010) made under the Act; or

(b) refused or failed to provide any material relating to the claim that was required to be provided by subsection 42 (10) of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996), made under the Act, or by subsection 44 (9) of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act.

I do not believe, however, that this matter warrants a line by line examination of the Insurer’s expenses. The general approach with respect to fees is to take a pragmatic, broad-strokes approach, with a view to fixing an amount that is reasonable.

Ms. Harper in oral submissions stated that the Applicant had failed to attend an Examination Under Oath on July 23, 2014, which prolonged the process. The Insurer also incurred a late cancellation fee. At the Examination Under Oath that was held on July 15, 2016, the Insurer stated that the Applicant provided false particulars which required the Insurer additional time and expense to verify the information provided. For example, the Applicant provided false dates of birth of her children who were named as attendant care providers. The wrong information was also provided about her family doctor who advised following an inquiry by the Insurer that he had not treated the Applicant. Lastly, the named chiropractor turned out not to be eligible to practice in Ontario. This required additional time and expense by the Insurer and additional contact with counsel.

I note in this circumstance that Ms. Hussen’s failure to participate in the initially scheduled Examination Under Oath prolonged the process and increased costs to the Insurer and is a relevant consideration under section 75(d) and (e) of the Expense Regulation. I also note that Ms. Hussen’s failure to participate in the Hearing process after her representative was granted permission to withdraw has caused delay and unnecessary expense to the Insurer. The Insurer urges the $3,000.00 filing fee should be allowed as a disbursement and this is an appropriate case to allow the amount. I agree. The $3,000.00 fee is allowed.

An Offer to Settle was made on March 17, 2016. The Applicant gave instructions to accept this offer. The Insurer did submit a written Offer to Settle to the Applicant which was accepted.

The Hearing dates of March 28 to 31, 2016 were then vacated. But the Applicant never completed the settlement documents. The file was closed but was then subsequently re-opened at a Motion heard by telephone on August 15, 2016. A new Hearing date was then scheduled for October 13, 2016. The Offer was made in writing and is a factor to consider in awarding costs under sections 75(b) and 76 of the Expense Regulation.

I fix the Insurer’s reasonable expense at $5,983.84, including all disbursements and applicable taxes. I find this amount to be reasonable given the time required to review the file, obtain instructions, prepare and file a response, prepare for and attend the Pre-Hearing discussions and a motion by telephone, and prepare for and attend the Hearing and resumed Hearing by telephone.

Accordingly, and pursuant to subsection 282(11) of the Insurance Act, Ms. Hussen is ordered to pay Royal’s expenses in the amount of $5,973.84 (inclusive of all costs, disbursements and taxes).

February 6, 2017

Thérèse Reilly Date Arbitrator

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:

Ms. Hussen’s claims in this Arbitration against Royal are dismissed.
The Applicant, Ms. Hussen, is to pay Royal’s expenses in the amount of $5,973.84 (inclusive of all costs, disbursements and taxes).