Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 163

FSCO A13-006658

BETWEEN:

ALISINA HASSAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: Stuart J. Mutch

Heard: November 29, 2013 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Saba Quadri of Gosai Law Professional Corporation, for Mr. Hassan

Emma Duggan of Zarek, Taylor, Grossman & Hanrahan for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Alisina Hassan, was injured in a motor vehicle accident on June 14, 2010. 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. Hassan 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 Gosai Law Professional Corporation be permitted to withdraw as Mr. Hassan’s representative?
Should Mr. Hassan’s Application for Arbitration be dismissed?

Result:

The Gosai Law Professional Corporation is permitted to withdraw as Mr. Hassan’s representative.
Mr. Hassan’s Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

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

Background

A pre-hearing discussion was held at the offices of the Financial Services Commission on November 7, 2013. Mr. Hassan did not participate in the pre-hearing.

At the pre-hearing, a hearing date of November 29, 2013 was set. The pre-hearing arbitrator directed that if Mr. Hassan appeared, the hearing would be converted to a pre-hearing, peremptory to Mr. Hassan. She further directed that if Mr. Hassan did not appear, it was anticipated that Mr. Hassan’s counsel would be bringing a motion to be removed as Mr. Hassan’s counsel of record, and that State Farm would be seeking an order dismissing all of the issues in dispute.

Motion to Withdraw as Mr. Hassan’s Representative

Mr. Hassan did not appear on the date and time fixed for the hearing. His counsel provided State Farm’s counsel and the hearing arbitrator with a motion record. Contained in the motion materials is the Affidavit of Nital S. Gosai sworn November 27, 2013. Attached as Exhibit “A” to the affidavit is a copy of a letter dated June 26, 2013 sent from Nital S. Gosai via registered mail to Mr. Hassan confirming that their office had verbally terminated their relationship on May 31, 2013. In paragraph 12 of the affidavit, Ms. Gosai listed seventeen attempts to contact Mr. Hassan, between June 4, 2013 and October 31, 2013, at three different telephone numbers, none of which was successful. Attached as Exhibit “D” to the affidavit is a copy of a letter dated November 7, 2013, from Nital Gosai sent via registered mail to Mr. Hassan, advising him Gosai Law will be making a motion to be removed as his Solicitor of Record on November 29, 2013, the date set for the hearing. The writer asked Mr. Hassan to contact their offices urgently if he had an objection.

At the hearing of the motion, counsel for Mr. Hassan advised me that the Gosai Law Professional Corporation had had no contact with Mr. Hassan since the last attempt made to contact him, October 31, 2013, as set out in paragraph 12 of the aforementioned affidavit. Ms. Quadri requested that the Gosai Law Professional Corporation be permitted to withdraw as Mr. Hassan’s solicitors of record due to a breakdown in the solicitor-client relationship. Counsel for State Farm indicated that she had no objection to the motion for removal from the record.

On the basis of the supporting documents provided in the Notice of Motion and Ms. Quadri’s submissions, I am satisfied that there has been a breakdown of communication in the solicitor-client relationship and that Rule 9.7 of the Dispute Resolution Practice Code has been complied with. It is hereby ordered that the Gosai Law Professional Corporation be permitted to withdraw as Mr. Hassan’s solicitors of record in this proceeding, without terms.

Dismissal Due to Non-Attendance

Contained in Mr. Hassan’s Application for Arbitration file are notices of all the various stages of this arbitration that were sent to Mr. Hassan 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.”

A Notice of Hearing was sent to Mr. Hassan by FSCO on November 13, 2013, at his last known address. This is the same address which appeared in the Plate History with Address search conducted October 30, 2013, and a copy of which was attached as Exhibit “E” to the above referenced affidavit of Nital S. Gosai. The notice stated:

If you or your representative do not attend at the 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 Hearing complied with the requirements of section 6 of the Statutory Powers Procedure Act (“SPPA”).²

Notwithstanding the notice, Mr. Hassan did not appear at FSCO for arbitration hearing scheduled for November 29, 2013 at 10:00 a.m.

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

By 10:30 a.m., Mr. Hassan had still not attended at FSCO. I then heard the motion to remove the law firm of Gosai Law Professional Corporation and Nital S. Gosai as Solicitors of Record and subsequently ordered that they be permitted to withdraw.

Counsel for State Farm then moved for an order dismissing all of the issues in dispute.

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.

There was no evidence before me that Mr. Hassan had made contact with anyone at FSCO after the breakdown in communication with his counsel or that he had retained or was attempting to retain new counsel.

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

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

As a result, I dismiss Mr. Hassan’s claims for Non-Earner Benefits, Attendant Care Benefits, Medical Benefits, Housekeeping and Home Maintenance expenses, Cost of Examinations, and other disputes, as well as his claim for interest on overdue payments and expenses and a Special Award.

EXPENSES

Neither party claimed its expenses and accordingly, no expense order was made.

December 16, 2013

Stuart J. Mutch

Arbitrator

Date