REASONS FOR DECISION

Before: Fred Sampliner Heard: September 1, 2010 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Rameshwer Sangha for Mrs. Azam Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Saira Azam, claims she was injured in a motor vehicle accident on November 7, 2006, and that she is entitled to lost educational expenses from State Farm Mutual Automobile Insurance Company ("State Farm") under section 20 of the Schedule¹ as a result of her accident injuries. State Farm refused to pay her claim and the parties were unable to resolve this dispute by mediation. The arbitration hearing of Mrs. Azam's claim took place at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is Mrs. Azam entitled to $9,164.20 for lost education expenses under section 20 of the Schedule?

Result:

No determination of Mrs. Azam's claim for lost education expenses can be made until the hearing is re-opened with adequate advance notice of the new date to both parties.

EVIDENCE AND ANALYSIS:

Under section 20 of the Schedule, Mrs. Azam must establish on a balance of probabilities that she was enrolled in an education program at the time of the accident, was unable to continue the program as a result of her accident injuries, and consequently lost education expenses.

Mrs. Azam did not appear at the September 1, 2010 hearing, and her representative asked for an adjournment of the hearing because he did not want to proceed without her testimony. He maintained she was not cooperating with him, but stated she knew about the hearing because he had spoken to Mrs. Azam the previous day to instruct her that she should attend. I allowed a short adjournment with instructions that he telephone Mrs. Azam to determine if she planned to attend or had a problem. Mr. Sangha said no one answered her telephone.

State Farm objected to an adjournment on the basis that Mrs. Azam's non-attendance is not a valid reason to adjourn the hearing. Practice Note 9 and Rule 72 of the Dispute Resolution Practice Code provide for adjournments when there is a personal emergency, health problem or where critical evidence is unavoidably delayed. Mr. Sangha did not argue or present any evidence to support these situations, and I denied the adjournment request.

Mrs. Azam's representative did not call any witnesses to testify, and State Farm did not either. I admitted into evidence a number of documents, without objection from the opposite party. The documents consist of seven (7) pages of Mrs. Azam's academic records at Sheridan College and four (4) communications from State Farm requesting Mrs. Azam to provide information.

State Farm objected to the admission of three (3) pages that Mr. Sangha agreed he had not sent to State Farm at any time prior to the commencement of the hearing. Mr. Sangha did not provide an excuse for failing to deliver the documents to State Farm thirty (30) days in advance of the hearing, as required by Rule 39 of the Dispute Resolution Practice Code or ask that they be admitted because of an extraordinary circumstance. I refused to admit the three (3) page document, and closed the hearing.

The Commission's file contains one Notice of Hearing announcing the September 1, 2010 date. This Notice was faxed to both representatives on August 31, 2010 and deposited by regular Canada Post to Mrs. Azam one day before the September 1, 2010 hearing. No hearing date was set out in the letter prepared by the arbitrator who conducted the pre-hearing, and there are no other communications from the Commission that would give Mrs. Azam advance written warning that her hearing was to take place on September 1, 2010. I make the reasonable assumption that Mrs. Azam did not receive the official Notice of Hearing until after September 1, 2010 on the basis that it was deposited in the mail the day before and in all likelihood was not delivered until after the hearing.

Mr. Sangha submitted that he verbally informed his client about the September 1, 2010 hearing, and she replied to him that she would attend. However, I am not prepared to accept that Mr. Sangha's report of his telephone call satisfies due process requirements that Mrs. Azam be given reasonable advance notice of the hearing and an opportunity to be heard. Therefore, I find that Mrs. Azam has not been provided with proper advance notice of the hearing.

The parties' representative did not point out this critical process failure during the course of the hearing, and I did not notice this problem either. I am loath to make a final decision based on the limited evidence submitted without appropriate notice to Mrs. Azam. Deciding Mrs. Azam's claim without appropriate due process would bring the administration of justice into disrepute. I find that the lack of an advance hearing notice to Mrs. Azam constitutes reasonable grounds to re-open the hearing under Rule 43 of the Dispute Resolution Practice Code.

I have instructed the Case Administrator to arrange a resumption date before me as soon as practical. I strongly advise the parties to exchange all remaining evidence they intend to introduce well in advance of the hearing to avoid surprise and to notify each other of any witnesses they intend to call for testimony, in accordance with the Dispute Resolution Practice Code.

EXPENSES:

The issue of the parties' claims for their expense of the arbitration are deferred until after the hearing concludes.

September 16, 2010

Fred Sampliner Arbitrator

Financial Services Commission of Ontario

Neutral Citation: 2010 ONFSCDRS 113 FSCO A09-002467

BETWEEN:

SAIRA AZAM 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:

The hearing is re-opened under Rule 43 of the Dispute Resolution Practice Code. The parties shall cooperate with the Case Administrator to schedule a new hearing date and a Hearing Notice will be issued promptly.