Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 156
FSCO A11-003220
BETWEEN:
ALICIA WYNN (REID)
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Susan Sapin
Heard: November 23, 2012 at 12:00 p.m. via teleconference
Appearances: Kwaku Bona for Ms. Wynn (Reid)
Alexander Reyes for State Farm Mutual Automobile Insurance Company
Background:
The Applicant, Alicia Wynn (Reid), was injured in a motor vehicle accident on January 30, 2010. She applied for various statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 State Farm disputed her entitlement to benefits. The parties were unable to resolve their disputes through mediation, and Ms. Wynn (Reid) 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.
A pre-hearing was held on August 8, 2012 to identify the issues in dispute, which are State Farm’s refusal to pay Ms. Wynn (Reid)’s claims for caregiver, attendant care, housekeeping benefits with interest, and her arbitration expenses.
Ms. Wynn (Reid) did not attend the pre-hearing, despite having been notified in writing at the address she provided to the Commission, and could not be reached by telephone. Her counsel on that day, Ms. Emily Casey, advised that she had not been able to locate her client. An arbitration hearing was scheduled for December 9, 2012.
At Ms. Casey’s request, I agreed to schedule a motion on November 9, 2012 for her to withdraw from the arbitration proceeding if she was unable to locate her client. At State Farm’s request I agreed to hear its motion on the same day, that Ms. Wynn (Reid)’s Application for Arbitration be dismissed without a hearing in accordance with Rule 68 of the Dispute Resolution Practice Code (the “Code”). The motions were subsequently rescheduled to November 23, 2012, via teleconference.
Ms. Wynn (Reid) did not participate in the motions despite Notice of the proceedings sent to her at the address provided to the Commission. Mr. Kwaku Bona participated as Ms. Wynn (Reid)’s legal representative.
Issues:
The issues in this motion are:
Should Ms. Wynn (Reid)’s legal representative be permitted to withdraw from the arbitration proceeding under Rule 9.8 of the Code?
Should Ms. Wynn (Reid)’s Application for Arbitration be dismissed without a hearing under Rule 68 of the Code?
Is State Farm entitled to its costs thrown away?
Result:
Mr. Kwaku Bona and the firm of Tkatch & Associates are removed as Ms. Wynn (Reid)’s legal representatives in this proceeding.
Ms. Wynn (Reid)’s Application for Arbitration is dismissed.
State Farm is entitled to its reasonable expenses fixed at $2,500.
EVIDENCE AND ANALYSIS:
Motion to Withdraw:
Mr. Bona requested that I permit him to withdraw from the arbitration proceeding as Ms. Wynn (Reid)’s legal representative on the grounds that he has been unable, despite reasonable efforts, to locate or contact his client. Mr. Bona explained he had even driven to Ms. Wynn (Reid)’s address in Scarborough (the same address as is on file with the Commission), only to be told by the current occupant that Ms. Wynn (Reid) no longer lived there. I am satisfied that Mr. Bona has made all reasonable efforts to contact his client.
The pre-hearing letter dated August 9, 2012 was sent to Ms. Wynn (Reid) via registered mail, after which she provided her most recent address, to which a Notice of Motion was also sent. I am satisfied that Ms. Wynn (Reid) has had proper notice of the content of both motions as well as their time and place.
Accordingly, Mr. Bona and the firm of Tkatch & Associates are removed from the record.
Motion to Dismiss the Application for Arbitration:
The grounds and facts upon which this motion is based are contained in the Motion Record of Reisler Franklin LLP, which was duly served and filed as required by Rule 68 of the Code. Based on the affidavit of Mr. Robert Franklin that Ms. Wynn (Reid)’s failure to attend seven scheduled section 42 medical assessments and an Examination Under Oath twice scheduled, State Farm submits that Ms. Wynn (Reid) has displayed a pattern of non-attendance from which it can only be concluded that she has in fact abandoned her arbitration proceeding, and the proceeding is now frivolous. This is one of the grounds upon which an arbitrator may dismiss a claim without a hearing of the merits under Rule 68 of the Code. As Ms. Wynn (Reid)’s legal representatives have been unable to contact her and there is no evidence that she has contacted either her legal representatives, State Farm or the Commission despite notice of these proceedings, I find that Ms. Wynn (Reid) has in fact abandoned her arbitration proceeding, and the claims are dismissed forthwith.
Expenses:
As State Farm has had to attend and prepare for both the pre-hearing and this proceeding, I find it is entitled to its reasonable expenses fixed at $2,500.
November 30, 2012
Susan Sapin Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 156
FSCO A11-003220
BETWEEN:
ALICIA WYNN (REID)
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:
Mr. Kwaku Bona and the firm of Tkatch & Associates are removed as Ms. Wynn (Reid)’s legal representatives in this proceeding.
Ms. Wynn (Reid)’s Application for Arbitration is dismissed.
Ms. Wynn (Reid) shall pay to State Farm its expenses of $2,500.
November 30, 2012
Susan Sapin Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.