Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2013 ONFSCDRS 47
FSCO A12-001298
BETWEEN:
ALEX KABIA Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Arbitrator Jeffrey Rogers
Heard: March 22, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Nicole Simes, solicitor for State Farm Mutual Automobile Insurance Company No one appearing for Mr. Kabia
The issues in this hearing are:
- Should the application for arbitration be dismissed because Mr. Kabia has not attended?
- Is State Farm entitled to its expenses of the arbitration, and if so, in what amount?
Result:
- The application is dismissed.
- State Farm is entitled to its expenses of the arbitration in the amount of $2,805.57.
Background:
The Applicant, Alex Kabia, was injured in a motor vehicle accident on May 11, 2010. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company, payable under the Schedule.1 Disputes arose regarding his entitlement to further benefits he claimed. The parties were unable to resolve their disputes through mediation, and Mr. Kabia applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
A pre-hearing discussion was scheduled to be held on November 19, 2012. Mr. Kabia did not attend. His counsel attended and indicated that he had lost contact with his client and therefore intended to seek removal from the record. He confirmed that Mr. Kabia’s last known address was the one contained in the records of the Commission. I adjourned the pre-hearing to January 25, 2013. I wrote to Mr. Kabia and informed him that, absent extraordinary circumstances, the pre-hearing would proceed on that day.
Mr. Kabia did not attend on January 25, 2013. I granted his counsel’s request to be removed from the record. I then proceeded with the pre-hearing, and set March 22, 2013 as the date for the hearing. I wrote to Mr. Kabia and informed him of the date for the hearing. I also informed him that the hearing would proceed in his absence if he did not attend, but that I would consider converting the proceeding into a pre-hearing discussion, if he attended. Mr. Kabia again did not attend.
ANALYSIS:
I am satisfied that Mr. Kabia was given Notice of the 2 pre-hearings and the hearing, as required by Rules 5.7 and 7.1 of the Dispute Resolution Practice Code. The Notice of Hearing warned Mr. Kabia that, if he did not attend, the matter may be disposed of in his absence. I know of no reason not to proceed in Mr. Kabia’s absence.
Mr. Kabia bears the onus of proving entitlement to the accident benefits he claimed. Since no evidence was provided to support the claims, the application for arbitration is dismissed.
EXPENSES:
I find that State Farm is entitled to its expenses of the arbitration based on its complete success. Counsel submitted a Bill of Costs claiming $3,902.80 for fees and $3,355.80 for disbursements. The time claimed for fees is reasonable, but the hourly rate is limited to the applicable legal aid rate, by operation of Rule 78.1 of the Dispute Resolution Practice Code. Recoverable fees are therefore 1.8 hrs. @ $123.75 for Mr. Schnarr, and 22.2 hrs. @ $94.28 for Ms. Simes.
Counsel advised that the claim for disbursements includes the arbitration levy of $3,000. I find no jurisdiction to order Mr. Kabia to repay this disbursement. The only recoverable disbursement set out in the Bill of Costs is $167.04 for photocopies. I find that claim to be reasonable.
I find that State Farm is entitled to expenses as follows:
Mr. Schnarr 1.8 hrs. @ $123.75 $222.75
Ms. Simes 22.2 hrs. @ $ 94.28 $2,093.02
Disbursements $167.04
HST $322.76
Total $2,805.57
April 9, 2013
Jeffrey Rogers Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2013 ONFSCDRS 47
FSCO A12-001298
BETWEEN:
ALEX KABIA 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:
- The application for arbitration is dismissed.
- Mr. Kabia shall pay State Farm its expenses of the arbitration in the amount of $2,805.57.
April 9, 2013
Jeffrey Rogers Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.