Kayon Earle v. State Farm Mutual Automobile Insurance Company, 2001 ONFSCDRS 43

Financial Services Commission of Ontario

Neutral Citation: 2001 ONFSCDRS 43

FSCO A00-000408

BETWEEN:

KAYON EARLE Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: David Leitch

Heard: March 13, 2001, at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances: no one for Mr. Earle Casey Van Moorleham for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Kayon Earle, was injured in a motor vehicle accident on January 11, 1998. Disputes arose between Mr. Earle and State Farm Mutual Automobile Insurance Company ("State Farm") regarding his entitlement to statutory accident benefits payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Earle 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 for arbitration were listed in the pre-hearing letter as follows:

1. Is Mr. Earle entitled to receive a weekly income replacement benefit based on self-employment or employment after May 8, 1998, pursuant to section 4 of the Schedule?

2. Is Mr. Earle entitled to receive a medical benefit for psychological treatment in the amount of $3,150 pursuant to section 14 of the Schedule?

3. Is Mr. Earle entitled to payments for the cost of examinations in the amount of $1,050, for a psychological assessment and treatment plan, pursuant to section 14 of Schedule?

4. Is State Farm entitle to terminate Mr. Earle's benefits for material misrepresentation pursuant to section 48 of the Schedule? Is Mr. Earle liable to repay State Farm the income replacement benefits he received as a result of wilful misrepresentation or fraud pursuant to section 47 of the Schedule?

5. Is Mr. Earle liable to pay State Farm an award in respect of its assessment under section 282(11.2) of the Insurance Act, R.S.O. 1990, c.I.8?

6. Is Mr. Earle liable to pay State Farm's expenses in respect of the arbitration. Under section 282(11) of Insurance Act, R.S.O. 1990, c.I.8?

7. Is Mr. Earle liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990. C.I.8?

Result:

1. Mr. Earle is not entitled to income replacement benefits as a result of the accident of January 11, 1998.

2. Mr. Earle is not entitled to medical benefits for psychological treatment in the amount of $3,150 as a result of the accident of January 11, 1998.

3. Mr. Earle is not entitled to payments for the cost of examinations in the amount $1,050 for a psychological assessment and treatment plan as a result of the accident of January 11, 1998.

4. Mr. Earle is not entitled to expenses in respect of the arbitration.

All of the above claims are dismissed.

The Insurer abandoned its claims for repayment of benefits, penalties and expenses.

EVIDENCE AND ANALYSIS:

The original hearing dates for this matter were November 28, 29 and 30, 2000. They were set by Arbitrator Alves at the pre-hearing discussion, conducted on June 21, 2000, in which both Mr. Earle and his counsel, Mr. L. Brent Vickar, participated.

On the Applicant's behalf, Mr. Vickar applied for and was granted an adjournment by Arbitrator Makepeace on November 22, 2000. The new hearing dates were set for March 13, 14 and 15, 2001. An Amended Notice of Rescheduled Hearing was sent on November 27, 2000 to Mr. Vickar and to Mr. Earle at 2130 Weston Road, Apt. #904, Toronto, M9N 3R9, the address indicated for Mr. Earle on the Application for Arbitration. The completed Application indicated that the "best way to reach" the Applicant was through Mr. Vickar. No change of address information has been supplied to the Financial Services Commission since the Application for Arbitration was received on April 25, 2000.

By Notice of Motion dated February 22, 2001, Mr. Vickar sought to be removed from the record as counsel for the Applicant. In his supporting Affidavit, sworn February 22, 2001, Mr. Vickar averred as follows:

7. As of my last discussion with Mr. Earle, in early December, 2000, I advised that I would require further contact from him, and would also require him to make efforts to obtain further documentation to advance his claim. The absence of such documentation was the basis upon which an adjournment of the first Hearing date of this matter was granted by the Commission.

Mr. Vickar's motion to be removed as counsel for the Applicant was eventually allowed by Arbitrator Alves on March 7, 2001. On that date, a male person named "Junior," who was reached by cell phone, informed Arbitrator Alves that Mr. Earle was "out of the country."

However, based on Mr. Vickar's Affidavit, I find that Mr. Vickar was still Mr. Earle's counsel when the new hearing dates were set and that he communicated with Mr. Earle after the new hearing dates were set.

I find that Mr. Earle was given proper notice of the new hearing dates through his counsel of record, Mr. Vickar, and through the Amended Notice of Rescheduled Hearing sent to his address.

Mr. Earle did not appear at the hearing on March 13, 2000 and nor did anyone else on his behalf. Mr. Christopher Metson appeared for the Insurer, as did Insurer's counsel Mr. Casey Van Moorleham. I waited until 10:30 a.m. before starting the hearing and concluded the hearing at 10:45 a.m.

Mr. Earle's various claims were not supported by any evidence and are hereby dismissed.

The Insurer abandoned its claims for repayment of benefits, penalties and expenses.

March 20, 2001

David Leitch Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 43

FSCO A00-000408

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KAYON EARLE Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Earle is not entitled to income replacement benefits as a result of the accident of January 11, 1998.

2. Mr. Earle is not entitled to medical benefits for psychological treatment in the amount of $3,150 as a result of the accident of January 11, 1998.

3. Mr. Earle is not entitled to payments for the cost of examinations in the amount $1,050 for a psychological assessment and treatment plan as a result of the accident of January 11, 1998.

4. Mr. Earle is not entitled to expenses in respect of the arbitration.

The Insurer abandoned its claims for repayment of benefits, penalties and expenses.

All of the above claims are dismissed.

March 20, 2001

David Leitch Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.