Thushajini Jeevanantham v. State Farm Mutual Automobile Insurance Company, 2012 ONFSCDRS 143

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

Neutral Citation: 2012 ONFSCDRS 143

FSCO A11-004192

BETWEEN:

THUSHAJINI JEEVANANTHAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Robert Bujold

Heard: August 24, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeared for Ms. Jeevanantham Samantha Dingwall for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Thushajini Jeevanantham, was involved in a motor vehicle accident on February 5, 2010. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”).¹ State Farm subsequently terminated certain benefits. The parties were unable to resolve their disputes through mediation, and Ms. Jeevanantham applied for arbitration at the Financial Services Commission of Ontario (the “Commission”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

The issues in this hearing are:

Is Ms. Jeevanantham entitled to attendant care benefits in the amount of $18.12 per month from February 5, 2010 to date and ongoing?
Is Ms. Jeevanantham entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from February 5, 2010 to date and ongoing?
Is Ms. Jeevanantham entitled to payments for the cost of examinations recommended by or incurred through Rehabilitation Network, as follows:

$40.00 for an OHIP summary;
$80.00 for clinical notes and records dated August 18, 2010;
$123.00 for a disability certificate from Dr. Hamani dated March 2, 2010;
$210.00 for approval of an assessment dated July 2, 2010;
$1,653.76 for an in-home assessment dated October 12, 2010;
$70.00 for preparation of a treatment plan dated November 3, 2010;
$847.50 for a physical demands analysis dated October 29, 2010;
$2,440.88 for a psychological assessment dated November 17, 2010; and
$70.00 for preparation of a treatment plan dated December 2, 2010?

Is State Farm liable to pay Ms. Jeevanantham’s expenses in respect of the arbitration?
Is Ms. Jeevanantham liable to pay State Farm’s expenses in respect of the arbitration?
Is Ms. Jeevanantham entitled to interest for the overdue payment of benefits?

Result:

Ms. Jeevanantham’s claims are dismissed.
State Farm is entitled to its expenses of the arbitration fixed at $1,000.00, inclusive of fees, disbursements and H.S.T.

EVIDENCE AND ANALYSIS:

Background:

By letter to the Commission dated May 9, 2012 (copied to Ms. Jeevanantham), ICS Legal Services Professional Corporation (ICS) requested that it be permitted to withdraw as Ms. Jeevanantham’s representative in this matter. ICS also provided the Commission with a copy of an earlier letter dated April 17, 2012 that it had sent to Ms. Jeevanantham by registered mail. That letter set out ICS’s previous attempts to contact Ms. Jeevanantham by telephone, and advised Ms. Jeevanantham that, in the circumstances, ICS would be seeking permission to withdraw as her representative based on an inability to secure instructions given the breakdown in communication.

A pre-hearing discussion in this matter was conducted on July 10, 2012, at 10:00 a.m., at the offices of the Commission. Ms. Jeevanantham did not attend at the pre-hearing discussion, although served at her last known address with a Notice of Pre-Hearing Discussion dated February 7, 2012.

ICS’s request for permission to withdraw as Ms. Jeevanantham’s representative was addressed at the pre-hearing discussion. Mr. Carranza confirmed that his firm had not heard from Ms. Jeevanantham in response to its letters dated April 17, 2012 and May 9, 2012. On review of these letters, and having heard Mr. Carranza’s submissions, I permitted ICS to withdraw as Ms. Jeevanantham’s representative in this matter on the basis of a breakdown in the representative and client relationship.²

The pre-hearing then proceeded in Ms. Jeevanantham’s absence and without a representative from ICS. At the pre-hearing, I scheduled the arbitration hearing for August 24, 2012, at 10:00 a.m., at the offices of the Commission. A Notice of Hearing dated July 10, 2012 was sent to Ms. Jeevanantham at her last known address confirming the appointment for the arbitration hearing.

I also wrote to Ms. Jeevanantham and State Farm by letter dated July 10, 2012. My letter confirmed the hearing date, time and location, and further confirmed that the issues to be adjudicated would be those set out in the Application for Arbitration and the Response by Insurer to an Application for Arbitration. However, my letter also advised as follows:

State Farm has been advised not to prepare for a contested hearing on August 24, 2012. In the event that Ms. Jeevanantham (with or without a representative) attends on that date, the hearing will not proceed and the appointment will be converted into a resumption of the pre-hearing discussion. In the event that Ms. Jeevanantham does not attend, then, as noted above, the hearing may proceed in her absence. Ms. Jeevanantham’s application for arbitration may be dismissed and State Farm’s expenses of the arbitration proceeding may be awarded against her.

The Arbitration Hearing:

On August 24, 2012 at 10:00 a.m., Mr. William Walton attended at the Commission on behalf of State Farm. Ms. Dingwall also attended as State Farm’s legal representative.

By 10:25 a.m., Ms. Jeevanantham had still not appeared at the offices of the Commission.

Rule 37.7 of the Dispute Resolution Practice Code 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.

Pursuant to Rule 37.7 of the Code, and being satisfied that Ms. Jeevanantham had been properly served at her last known address with the Notice of Hearing, the arbitration hearing proceeded in her absence.

As Ms. Jeevanantham did not attend to present any evidence, she failed to establish her entitlement to the benefits claimed. Ms. Jeevanantham’s claims were therefore dismissed.

EXPENSES:

On hearing the submissions of counsel for State Farm, I find that State Farm is entitled to its expenses of the arbitration which I fix at $1,000.00, inclusive of fees, disbursements and H.S.T.

October 4, 2012

Robert Bujold Arbitrator

Date