REASONS FOR DECISION

Before: Lloyd (J. R.) Richards Heard: September 2, 2011, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: No one appearing for Ms. Khamo Joanna Cox for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Nadiya Khamo, was injured in a motor vehicle accident on June 22, 2009. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm eventually terminated Ms. Khamo’s benefits. The parties were unable to resolve their disputes through mediation, and Ms. Khamo 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 Ms. Khamo entitled to receive weekly caregiver benefits at the rate of $250.00 per week from June 22, 2009 to July 31, 2010 pursuant to section 13 of the Schedule?
Is Ms. Khamo entitled to receive a medical benefit set out as follows and claimed pursuant to section 14 of the Schedule? (a) $4,827.14 – services at Osler Rehabilitation Centre under a treatment plan dated June 22, 2009. (b) $3,148.24 – services at East Sheppard Rehabilitation Centre under a treatment plan dated June 22, 2009. (c) $1,246.40 – services at Vaughn Rehabilitation Centre under a treatment plan dated June 22, 2009. (d) $263.72 – services by Dr. Beharry, report dated August 5, 2009.
Is Ms. Khamo entitled to attendant care benefits at the rate of $506.53 per month from June 22, 2009 to date and ongoing, pursuant to section 16 of the Schedule?
Is Ms. Khamo entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from June 22, 2009 to date and ongoing, pursuant to section 22 of the Schedule?
Is Ms. Khamo liable to repay State Farm the benefits she received from State Farm in the amount of $22,837.06, pursuant to section 47 of the Schedule?
Is State Farm liable to pay Ms. Khamo’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Khamo 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?
Is Ms. Khamo entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Ms. Khamo’s claims are dismissed.

EVIDENCE AND ANALYSIS:

Neither Mr. Khamo, nor anyone representing her, appeared at the Commission on the September 2, 2011 hearing date.

The first pre-hearing in this matter took place on April 14, 2011. At that point Ms. Khamo was represented by legal counsel. At that pre-hearing I made five production orders requiring Ms. Khamo to deliver to State Farm specific documents within thirty and sixty days of the pre‑hearing. Ms. Khamo did not comply with my orders. By correspondence dated June 14, 2011, State Farm requested a resumption of the pre-hearing to address the production issues. I scheduled the resumed pre-hearing in this case for July 8, 2011. Prior to the resumed pre‑hearing, Ms. Khamo terminated her relationship with her legal counsel by a direction signed July 4, 2011.

Ms. Khamo did not attend at the resumed pre-hearing on July 8, 2011 and I attempted, without success, to contact Ms. Khamo by telephoning the numbers on file for her at this Commission. I also telephoned her, again without success, at a telephone number that State Farm provided. I concluded the pre-hearing and rescheduled the hearing in this matter to September 2, 2011. Notice of the hearing was sent to Ms. Khamo’s last known address and was not returned to this Commission.

At the commencement of the hearing in this matter I adjourned the hearing for thirty minutes, giving Ms. Khamo an opportunity to appear. As Ms. Khamo did not appear after the thirty-minute adjournment, the hearing in this matter proceeded in her absence.

The onus is on the Applicant to prove her claim on a balance of probabilities. Hearing no evidence from Ms. Khamo, and hearing nothing from State Farm in the way of evidence that could support Ms. Khamo’s claims, I find that she has failed to meet the burden of proving her claims. Therefore, her claims for benefits are dismissed.

In response to Ms. Khamo’s arbitration application, State Farm made a claim for repayment of $22,837.06. At this hearing State Farm abandoned its claim for the repayment without prejudice to its efforts to secure repayment in another forum.

EXPENSES:

I find that Ms. Khamo, having failed to appear on this matter, and not succeeding on the issues in dispute, is not entitled to expenses. State Farm made no submissions on expenses, therefore I did not order that Ms. Khamo pay any of State Farm’s expenses.

October 12, 2011

Lloyd (J. R.) Richards Arbitrator

Financial Services Commission of Ontario

Neutral Citation: 2011 ONFSCDRS 89 FSCO A10-003211

BETWEEN:

NADIYA KHAMO 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:

Ms. Khamo’s claims are dismissed.