Neutral Citation: 2012 ONFSCDRS 104

FSCO A10-002309

BETWEEN:

GEORGE VLAD OSACENCO

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Deborah Pressman

Heard: May 16, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Osacenco Mireille Dahab for the Law Offices of Meleni David Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, George Vlad Osacenco, was injured in a motor vehicle accident on April 12, 2008. He claimed statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose concerning his entitlement to benefits. The parties were unable to resolve their disputes through mediation, and Mr. Osacenco 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:

Should the Law Offices of Meleni David be permitted to withdraw as Mr. Osacenco’s representative?
Should Mr. Osacenco’s Application for Arbitration be dismissed?
Is Mr. Osacenco liable to pay State Farm’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Result:

The Law Offices of Meleni David is permitted to withdraw as Mr. Osacenco’s representative.
Mr. Osacenco’s Application for Arbitration is dismissed.
Mr. Osacenco is liable to pay State Farm’s expenses, fixed at $1,500.00, inclusive of HST, in respect of the arbitration under subsection 282(11) of the Insurance Act

EVIDENCE AND ANALYSIS:

Despite notices, Mr. Osacenco did not attend his arbitration hearing and failed to prove his claims for accident benefits listed in his Application for Arbitration. Mr. Osacenco’s claims are dismissed for the reasons that follow.

Motion to Withdraw as Mr. Osacenco’s Representative

On March 28, 2012, the Law Offices of Meleni David filed motion materials to withdraw as Mr. Osacenco’s representative. The motion materials included a Notice of Motion and the Affidavit of Anne Sritharan, a law clerk from the Law Offices of Meleni David, attesting to a breakdown of the solicitor-client relationship. This motion was heard on May 16, 2012

During the motion hearing, Ms. Dahab, legal counsel for Mr. Osacenco, submitted that Mr. Osacenco advised her firm by telephone call on March 6, 2012, that he does not want to proceed with his claim and that he no longer wishes to be represented by the Law Offices of Meleni David.

Ms. Dahab requested that the Law Offices of Meleni David be permitted to withdraw as Mr. Osacenco’s solicitors of record due to a breakdown in the solicitor-client relationship. Mr. Schrieder, legal counsel for the Insurer, State Farm, did not oppose the motion.

On the basis of the supporting documents provided in the Notice of Motion and Ms. Dahab’s submissions, I am satisfied that there has been a breakdown of communication in the solicitor-client relationship. It is hereby ordered that the Law Offices of Meleni David be permitted to withdraw as Mr. Osacenco’s solicitors of record in this proceeding, without terms.

Dismissal Due to Non-Attendance

The file shows that notices of all the various stages of this arbitration were sent to Mr. Osacenco at the address he provided to FSCO.

Rule 9.1(c) of the Dispute Resolution Practice Code (the “Code”) provides that “[FSCO] is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records.”

On March 20, 2012, I granted an adjournment of Mr. Osacenco’s arbitration hearing pursuant to Rule 1.1 and Rule 72 of the Code, from March 26, 2012 to May 16, 2012, in order to allow the Law Offices of Meleni David to serve and file a motion to withdraw as Mr. Osacenco’s representative.²

By letter dated March 20, 2012, I notified Mr. Osacenco that a motion to withdraw and his arbitration hearing are scheduled to proceed at the same time on May 16, 2012, and stated the following:

In the event that Mr. Osacenco does not attend, then, as noted above, the hearing may proceed in his absence. Mr. Osacenco’s Application for Arbitration may be dismissed and State Farm’s expenses of the arbitration proceeding may be awarded against him.

A Notice of Motion and Notice of Hearing were sent to Mr. Osacenco by FSCO on March 29, 2012. Both notices stated:

If you or your representative do not attend at the motion/hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.

I am satisfied that the Notice of Motion and Notice of Hearing complied with the requirements of section 6 of the Statutory Powers Procedure Act (“SPPA”).³

Notwithstanding the notices, Mr. Osacenco did not appear at FSCO for his motion or arbitration hearing scheduled for May 16, 2012 at 3:30 p.m.

Although I was satisfied that Mr. Osacenco was served with a Notice of Motion and Notice of Hearing at his last known address, I recessed the motion and hearing for 30 minutes to allow time for Mr. Osacenco to attend.

During the recess, our office attempted, without success, to contact Mr. Osacenco by placing a telephone call to the number on file. Someone who identified herself as Mr. Osacenco’s grandmother answered the call. She was not aware of Mr. Osacenco’s arbitration hearing or of his whereabouts.

By 4 p.m., Mr. Osacenco had still not attended at FSCO or returned our call. State Farm’s representative requested that the motion and hearing proceed in Mr. Osacenco’s absence. I agreed. Both the motion and hearing proceeded in his absence.

Subsection 7(1) of the SPPA speaks to the effect of non-attendance at a hearing after due notice. It reads as follows:

Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party.

Rule 37.7 of the Code provides:

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.

Pursuant to Subsection 7(1) of the SPPA and Rule 37.7 of the Code, the hearing and motion proceeded in Mr. Osacenco’s absence.

In order to establish his entitlement to benefits, Mr. Osacenco must provide evidence supporting his claims and prove his claims on a balance of probabilities. As Mr. Osacenco did not attend to present any evidence, he failed to establish his entitlement to the benefits claimed in his Application for Arbitration.

As a result, I dismiss Mr. Osacenco’s claims for caregiver benefits, attendant care benefits and housekeeping expenses, as well as his claim for interest on overdue payments and expenses.

EXPENSES:

State Farm provided oral submissions with respect to its claim for $1,500.00 (inclusive of HST) for its legal expenses of the arbitration proceeding. Counsel for State Farm submitted that the actual hours spent on this file exceed the $1,500.00 claimed for expenses.

When assessing legal fees, arbitrators at FSCO determine entitlement and quantum by applying criteria dictated by the legislation,⁴ and bearing in mind the overriding principle of reasonableness.⁵ I find that only the first criterion, “each party’s degree of success in the outcome of the proceeding,” is relevant in this case.

Mr. Osacenco failed to communicate with FSCO and did not attend this hearing. As a result of his failure to proceed with his arbitration and the ultimate dismissal of his claims, he did not succeed in asserting his claims for benefits and is not entitled to his expenses. State Farm, as the “successful party”, is entitled to its expenses.

I find State Farm’s claim for $1,500.00 for legal fees and disbursements to be reasonable. This amount takes into consideration the time counsel spent preparing a Response by Insurer to an Application for Arbitration, consulting with his client, preparing for and attending at the pre-hearing discussion on May 3, 2011, the adjournment request on March 20, 2012 and attending at the motion and hearing on May 16, 2012.

I therefore exercise my discretion and order Mr. Osacenco to pay State Farm’s expenses at $1,500.00, inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

July 5, 2012

Deborah Pressman Arbitrator

Date

Financial Services Commission of Ontario