Monica Baffoe v. State Farm Mutual Automobile Insurance Company, 2013 ONFSCDRS 101

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

Neutral Citation: 2013 ONFSCDRS 101

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BETWEEN:

MONICA BAFFOE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Anne Sone

Heard: April 8 and 26, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Ms. Baffoe Heather Kawaguchi for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Monica Baffoe, claims to have been injured in a motor vehicle accident on February 13, 2009. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose between the parties concerning Ms. Baffoe’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and Ms. Baffoe 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 dispute are identified in the Pre-Hearing letter of Arbitrator Sampliner dated August 17, 2012 as follows:

Caregiver Benefits: State Farm does not accept Ms. Baffoe’s claim she was the primary caregiver for her two grandchildren at the time of the accident, and it paid no benefits under Part IV of the Schedule. She claims $300 per week ongoing.
Housekeeping Expenses: Under section 22 of the Schedule, State Farm paid Ms. Baffoe $1,600 total until June 4, 2009. She claims ongoing benefits at $100 per week.
Attendant Care Benefits: Under section 16 of the Schedule, State Farm paid Ms. Baffoe $1,036.75 to June 4, 2009. She claims an ongoing benefit since the accident at various rates submitted under her Form 1 documents.
Medical/Rehabilitation Benefits: Under Part V of the Schedule, Ms. Baffoe claims the same amounts and services as set out in the mediation report.
Costs of Examination: Under section 24 of the Schedule, Ms. Baffoe claims the same amounts and services as set out in the mediation report.
Ms. Baffoe claims interest, special award and her expenses in respect of the arbitration.

Result:

This Application for Arbitration is dismissed.
Ms. Baffoe shall pay to State Farm expenses of $1,500 for fees, and $203.62 for disbursements, both inclusive of HST.

EVIDENCE AND ANALYSIS:

The Application for Arbitration was filed on behalf of Ms. Baffoe on or about June 1, 2011. She attended a pre-hearing before Arbitrator Sampliner where the date was set for the hearing of her case. A copy of the pre-hearing letter containing the date was sent to Ms. Baffoe, in addition to a separate Notice of Hearing.

The Applicant was represented by AM Accident Benefits Consultants Inc. (AM) until February 22, 2013. In support of a request to withdraw representation, AM sent a letter dated November 23, 2012, by regular and registered mail to the Applicant’s address. This letter specifically stated the date, time and place of the Applicant’s arbitration. A letter dated February 22, 2013 from Senior Arbitrator Macey confirmed that AM had been permitted to withdraw as the Applicant’s representative. This letter, in addition to an amended Notice of Hearing, marked the hearing date as peremptory to the Applicant.

State Farm also sent the Index to its Arbitration Brief to the Applicant, but did not hear back from her.

I note that pursuant to section 9.1(c) of the Dispute Resolution Practice Code (Fourth Edition, updated August 2011), parties must provide the Dispute Resolution Group (DRG) with written notice of any change of their address, and that the DRG is entitled to rely upon the last known address contained in its records. The Applicant did not provide the DRG with any notice of a change in her address.

On April 8, 2013, Ms. Heather Kawaguchi, counsel for State Farm, appeared before me, as did Jeff Kope, on behalf of State Farm. Despite waiting until 10:30 a.m., the Applicant never appeared before me. State Farm requested that this Application be dismissed.

The Applicant has received numerous notices of this hearing. She has the onus to prove her case. Since it appears that she has abandoned this matter, I dismiss it.

EXPENSES:

Liability:

Under Section F of the Expense Regulation, I shall consider certain criteria for the purpose of awarding all or part of the expenses incurred in respect of an arbitration proceeding. The relevant ones in this case are the following:

Each party’s degree of success in the outcome of the proceeding.

State Farm was completely successful in this proceeding.

The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings or orders.

The Applicant did not co-operate with her representative in complying with undertakings for productions.

Whether any aspect of the proceeding was improper, vexatious or unnecessary.

The Applicant did not advise that she did not plan to attend the hearing. In addition, State Farm submits that the Applicant was a passenger in a vehicle insured by Allstate Insurance. She claimed accident benefits against Allstate, before making a claim against State Farm, her own insurer. She had different legal representatives and saw different clinics for each of these separate claims.

Based on the foregoing criteria, I award State Farm its expenses of this proceeding.

Amount:

State Farm submitted a Bill of Costs claiming fees totalling $6,677.27. The hearing itself was short; however, State Farm spent a substantial amount of time settling numerous claims directly with medical service providers and assessors. Since this would have assisted in shortening the hearing, I order $1,500 for legal fees, inclusive of HST.

I find State Farm’s claim for Disbursements to be reasonable, except for a claim for a court reporter of $571.22. In view of the strong indications that the Applicant was unlikely to attend the hearing, I do not find this to be a reasonable disbursement. I order the remainder of the Disbursements, which total $203.62, inclusive of HST.

August 9, 2013

Anne Sone Arbitrator

Date