Neutral Citation: 2009 ONFSCDRS 107 FSCO A08-001919

BETWEEN:

KIRITHARAN THIYAGRAJAH Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Robert Bujold Heard: July 3, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Thiyagrajah did not appear Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Kiritharan Thiyagrajah, was injured in a motor vehicle accident on November 11, 2006. He applied for and received certain statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ However, State Farm denied payment of certain other statutory accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Thiyagrajah 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 Mr. Thiyagrajah entitled to weekly income replacement benefits, less any amounts paid, from November 18, 2006 and ongoing, pursuant to section 4 of the Schedule?
Is Mr. Thiyagrajah entitled to attendant care benefits in the amount of $1,920.00 per month from November 11, 2006 and ongoing, pursuant to section 16 of the Schedule?
Is Mr. Thiyagrajah entitled to a medical benefit in the amount of $1,920.00 claimed to be outstanding for chiropractic treatments, massage therapy and acupuncture provided by Focus Rehab, pursuant to section 14 of the Schedule?
Is State Farm liable to pay a special award on any benefits unreasonably withheld or delayed, pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8?
Is State Farm liable to pay Mr. Thiyagrajah’s expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Thiyagrajah liable to pay State Farm’s expenses in respect of the arbitration, pursuant to section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Thiyagrajah entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?

Result:

Mr. Thiyagrajah’s application for arbitration is dismissed.
Mr. Thiyagrajah shall pay State Farm’s expenses of the arbitration fixed at $750.00.

EVIDENCE AND ANALYSIS:

A pre-hearing discussion in this matter was held on February 11, 2009, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario. Mr. Thiyagrajah participated in the pre-hearing. Ms. Tatebe, student-at-law with Mazin Rooz Mazin, represented Mr. Thiyagrajah. Mr. Schrieder, legal counsel, represented State Farm. Although Mr. Thiyagrajah appeared to have some command of the English language, the Commission arranged for an interpreter, Mr. Kanthasamy Kanapathy, to provide translation services for Mr. Thiyagrajah in English and Tamil.

At the outset of the pre-hearing, the parties engaged in discussions between themselves aimed at trying to resolve the issues in dispute. At approximately 10:30 a.m., I was advised that not only had the parties not reached resolution, but Mr. Thiyagrajah had lost confidence in his legal representative and wished to terminate the relationship.

I confirmed with Mr. Thiyagrajah that he no longer wished to have Mazin Rooz Mazin represent him in this matter. Mr. Thiyagrajah indicated that he would like the opportunity to consult and possibly retain new counsel. Given Mr. Thiyagrajah’s wishes, Ms. Tatebe agreed that Mazin Rooz Mazin should no longer remain on record as his representative.

In the circumstances, Mazin Rooz Mazin was removed as Mr. Thiyagrajah’s representative. After confirming Mr. Thiyagrajah’s current contact information, I scheduled a resumption of the pre-hearing discussion for Friday, May 8, 2009 at 10:00 a.m. at the offices of the Commission. Mr. Thiyagrajah was advised to act promptly to consult and, if he chose, to retain new counsel. In any event, I advised Mr. Thiyagrajah that, with or without new counsel, he was required to personally attend at the offices of the Commission when the pre-hearing discussion resumed on May 8th.

I wrote to the parties on February 11, 2009 confirming the above. The Commission also delivered a Notice of Resumption of Pre-Hearing Discussion dated February 26, 2009 confirming the resumption of pre-hearing scheduled for May 8, 2009 at 10:00 a.m. Both items of correspondence were sent to the address that Mr. Thiyagrajah confirmed at the pre-hearing as his current address. Neither correspondence was returned to the Commission.

On May 8, 2009 at 10:00 a.m., Mr. Schrieder attended on behalf of State Farm at the offices of the Commission for the resumed pre-hearing. Mr. Milroy Ananbraj attended at the Commission’s request to provide interpretation services. Mr. Thiyagrajah did not appear. At approximately 10:15 a.m., the case administrator called Mr. Thiyagrajah at the telephone number provided by him and left a message to return her call. By 10:40 a.m., Mr. Thiyagrajah had not returned the call nor had he appeared at the offices of the Commission.

In view of Mr. Thiyagrajah’s failure to attend, although provided with both oral and written notice of his obligation to attend, the pre-hearing discussion proceeded in his absence. An arbitration hearing was then scheduled for Friday, July 3, 2009 at 10:00 a.m. at the offices of the Commission. However, State Farm was advised not to prepare for a contested hearing. In a letter to the parties dated May 8, 2009, I confirmed Mr. Thiyagrajah’s non-attendance at the resumed pre-hearing and advised as follows:

I have scheduled the arbitration hearing in this case for July 3, 2009, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario in Toronto.

This office will send you a formal Notice of Hearing confirming the details shortly.

Where notice of hearing has been sent to a party and a party does not attend, 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.

The issues in this hearing will be the issues identified in the Application for Arbitration and the Response by Insurer to an Application for Arbitration.

State Farm has been advised not to prepare for a contested hearing on July 3, 2009. In the event that Mr. Thiyagrajah (with or without a representative) attends on that date, the hearing will not proceed and the appointment will be converted into a further resumption of the pre-hearing discussion. In the event that Mr. Thiyagrajah does not attend, then, as noted above, the hearing may proceed in his absence. Mr. Thiyagrajah’s application for arbitration may be dismissed and State Farm’s expenses of the arbitration proceeding may be awarded against him.

An interpreter fluent in Tamil and English will be made available at the hearing on July 3, 2009.

If you have any questions or require more information, please contact the Case Administrator for this file, Elina Tarassov, who can be reached at (416) 590–7588.

My letter of May 8, 2009, as well as a Notice of Hearing dated May 13, 2009, were sent to the address that Mr. Thiyagrajah confirmed as his current address at the initial pre-hearing discussion. Again, neither my letter nor the Notice of Hearing were returned to the Commission.

On July 3, 2009 at 10:00 a.m., Mr. Schrieder attended at the offices of the Commission. Ms. Margaret Hyginus attended at the Commission’s request to provide interpretation services. Again, Mr. Thiyagrajah did not appear. I recessed until 10:30 a.m. to allow time for Mr. Thiyagrajah or a representative to attend.

In addition to the notice contained in both my letter of May 8, 2009 and the Notice of Hearing dated May 13, 2009 that the hearing may proceed in Mr. Thiyagrajah’s absence should he fail to attend, I also note that Rule 37.7 of the Dispute Resolution Practice Code (Fourth Edition) provides as follows:

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.

Given Mr. Thiyagrajah’s failure to attend at the Commission on both May 8, 2009 and July 3, 2009, the hearing proceeded in Mr. Thiyagrajah’s absence pursuant to Rule 37.7 of the Code.

In order to establish his entitlement to benefits, Mr. Thiyagrajah must provide evidence in support of his claims. As Mr. Thiyagrajah did not attend to present any evidence, he failed to establish his entitlement to the benefits claimed and, consequently, I gave my oral decision that his claims were dismissed.

Subsequent to the hearing on July 3, 2009, Mr. Thiyagrajah attended at the offices of the Commission on July 13, 2009. He attended with the Notice of Hearing in hand. Mr. Thiyagrajah spoke with the Manager of Administration and Support Services for the Arbitration Unit. He advised the manager that he had not received the Notice in time to attend on July 3, 2009², and he inquired what had transpired at the hearing. Mr. Thiyagrajah was advised that the hearing had proceeded in his absence and his claim had been dismissed. Mr. Thiyagrajah was further advised that my reasons for decision and written order had not yet been issued, and if he wished to request that the hearing be reopened and my decision revisited that he would need to put his request in writing as soon as possible. In that regard, I am advised that the manager offered to provide Mr. Thiyagrajah with pen and paper and offered to wait while Mr. Thiyagrajah put his request in writing. Mr. Thiyagrajah declined the offer, indicating that he would prefer to fax his request and undertaking to provide the written request “in the next day or two.” The manager provided her name to Mr. Thiyagrajah and confirmed the Commission’s fax number.

As of the date of the issuance of these reasons for decision, the Commission has not received any further communication from Mr. Thiyagrajah by correspondence or otherwise.

I am satisfied that Mr. Thiyagrajah had proper notice of both the resumption of pre-hearing on May 8, 2009 and the hearing that proceeded in his absence on July 3, 2009. I am further satisfied that, in the event that he did not have notice, Mr. Thiyagrajah has had ample time to put a request in writing that the hearing be reopened and my decision revisited. I therefore confirm the oral decision I gave on July 3, 2009 that Mr. Thiyagrajah’s application for arbitration is dismissed.

EXPENSES:

At the hearing on July 3, 2009, State Farm submitted that it should be entitled to its expenses of the arbitration proceeding which included three attendances at the Commission’s offices. As State Farm noted, Mr. Thiyagrajah met with no success in this arbitration. State Farm was content that I fix expenses in an amount that I deemed appropriate in the circumstances.

I exercise my discretion, pursuant to section 282(11) of the Insurance Act and order that Mr. Thiyagrajah pay State Farm’s expenses of the arbitration fixed at $750.00.

July 29, 2009

Robert Bujold Arbitrator

Date

Financial Services Commission of Ontario