Merwys Shokoorzada v. Nordic Insurance Company of Canada, 2017 ONFSCDRS 83

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 83

FSCO A16-001731

BETWEEN:

MERWYS SHOKOORZADA

Applicant

and

NORDIC INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Arbitrator Paulina Gueller

Heard: By telephone conference on March 13, 2017

Appearances: Mr. Merwys Shokoorzada did not attend Mr. Christopher Missiuna attended for Nordic Insurance Company of Canada

Issues:

The Applicant, Mr. Merwys Shokoorzada, was injured in a motor vehicle accident on November 2, 2013 and sought accident benefits from Nordic Insurance Company of Canada (“Nordic”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Merwys Shokoorzada, through his 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 Mr. Shokoorzada’s Application for Arbitration be dismissed?
Is Mr. Shokoorzada liable to pay the Insurer’s expenses in respect of the Arbitration under section 282(11) of the Insurance Act?

Result:

Mr. Shokoorzada’s Application for Arbitration is dismissed.
Mr. Shokoorzada shall pay the Insurer its expenses of this proceeding, fixed in the sum of $500.00, inclusive of all fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on January 9, 2017, at which Mr. Shokoorzada failed to appear.

On January 9, 2017, I sent a letter to Mr. Shokoorzada at his last known address to advise him of the missed Pre-Hearing discussion. The letter provided Mr. Shokoorzada with an Attendance Notice, setting a date of March 13, 2017 at 9:30 a.m., to hear the issues identified in the Application for Arbitration.

The letter also advised him that:

a) I allowed Bartolini, Berlingieri, Barrafato, Fortino, LLP to be removed as the Applicant’s counsel and consequently, Mr. Shokoorzada became unrepresented; and

b) Should Mr. Shokoorzada not contact our office or participate in any further proceedings, I would dismiss his Application and consider Nordic’s request for expenses.

The Dismissal

For the reasons that follow, Mr. Shokoorzada’s Application for Arbitration is dismissed.

As of March 13, 2017, I was unable to contact Mr. Shokoorzada, he had yet to contact ADR Chambers as requested, and had not participated in any of the Arbitration proceedings.

I am satisfied that Mr. Shokoorzada was given notice of all of the proceedings related to his Application for Arbitration at his last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“DRPC”), the Arbitration Hearing proceeded in his absence.

Mr. Shokoorzada 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:

Nordic requested its expenses of the Hearing, but did not provide me with a Bill of Costs.

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

75.2 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 include the party’s success in the proceedings and the conduct of the party that prolonged the proceedings unnecessarily. Mr. Shokoorzada failed to pursue his claim, instruct his counsel and attend the proceedings.

Nordic is the successful party and is entitled to its expenses. I consider the time that Nordic’s counsel spent preparing responses to the Application for Arbitration, consulting with its client, and preparing and attending one Pre-Hearing by telephone and the Hearing.

I find that Nordic was aware that Mr. Shokoorzada had lost contact with his counsel and that he was not pursuing his Application for Arbitration. 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 that Mr. Shokoorzada pay Nordic’s expenses that I have assessed at $500.00, inclusive of all fees, disbursements and HST.

This amount is payable forthwith.

March 20, 2017

Paulina Gueller Arbitrator

Date