Mubashir Riaz v. State Farm Mutual Automobile Insurance Company, 2009 ONFSCDRS 135

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

Neutral Citation: 2009 ONFSCDRS 135

FSCO A08-002294

BETWEEN:

MUBASHIR RIAZ

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Suesan Alves

Heard: Submissions were due by September 30, 2009

Appearances: Nick Greer for Mr. Riaz Doug Patton for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mubashir Riaz was injured in a motor vehicle accident on November 9, 2005. He applied for arbitration claiming weekly income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits, and interest payable under the Schedule¹ and expenses under the Insurance Act, R.S.O. 1990, c.I.8. State Farm Mutual Automobile Insurance Company (“State Farm”) disputed his entitlement to these benefits and claimed its expenses.

State Farm sought a stay of the arbitration on this motion. For the reasons which follow, the stay is granted and the hearing dates which are scheduled are vacated.

The issue on this motion is:

Should this arbitration be stayed?

Result:

The arbitration is stayed. The hearing dates of March 1, 2, 3 and 4, 2010 are vacated.

EVIDENCE AND ANALYSIS:

Background

On September 4, 2009, counsel for the Insurer sought a stay of the arbitration on the basis that Mr. Riaz had not participated in the process and had no ability to proceed with the arbitration.

Counsel for the Applicant did not oppose the request. Counsel for Mr. Riaz or members of his firm had made fruitless attempts to reach him to have an authorization signed in order to obtain relevant medical and employment productions.

Counsel for the Insurer wrote to Mr. Riaz that he proposed to seek a stay of the arbitration. That material was sent to Mr. Riaz’s last known address; however it was returned, marked “Address Unknown.” As Mr. Riaz had not received actual notice, I exercised my discretion to grant the requested stay in a two-stage process.

On September 9, 2009, I issued an Order which was notice to Mr. Riaz that unless he or his lawyer writes to counsel for State Farm and to the Case Administrator at the Financial Services Commission of Ontario by September 30, 2009, informs them that he objects to a stay of the arbitration and undertakes to proceed diligently, an Order staying the arbitration would be issued, and the hearing dates of March 1, 2, 3 and 4, 2010 would be vacated.

A copy of the Order was sent to Mr. Riaz by registered mail. The tracking number provided by Canada Post was checked on October 1, 2009. The track history stated “Item redirected to recipient’s new address” on September 14, 2009. As the object of sending out the Order was to provide Mr. Riaz with actual notice, I wrote counsel and advised that I proposed to wait until the tracking system was updated. However, counsel were advised that I would consider any additional submissions they wished to make.

On October 5, 2009, the Canada Post track history stated “Item successfully delivered.” On October 7, 2009, the Case Administrator informed me that the decision which had been sent to Mr. Riaz by registered mail had been returned to her.

On further inquiry, the Case Administrator determined that the statement in the track history “Item redirected to recipient’s new address” on September 14, 2009, was in fact a reference to Canada Post affixing a different postal code to the mail sent by the Commission. The Case Administrator also determined that the statement in the track history “Item successfully delivered” on October 5, 2009 was in fact a reference to Canada Post having returned the registered mail to the Financial Services Commission of Ontario.

In these circumstances, I now grant the stay as requested and vacate the hearing dates of March 1, 2, 3 and 4, 2010.

October 8, 2009

Suesan Alves Arbitrator

Date