Neutral Citation: 2013 ONFSCDRS 61 FSCO A11-003374

BETWEEN:

YI PING GENG Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Judith Killoran Heard: April 2, 2013, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Ms. Geng did not appear and no one appeared on her behalf Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Yi Ping Geng, was involved in a motor vehicle accident on February 6, 2009. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties disagreed about issues of entitlement and were unable to resolve their disputes through mediation. Ms. Geng 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 involve claims by Ms. Geng to a number of medical, attendant care, housekeeping and cost of examination benefits, which are outlined more fully in a pre-hearing letter dated October 1, 2012.

Ms. Geng attended the pre-hearing of July 11, 2012 and was represented by Mr. Miguel Maruszki of Traffic Law Advocates. On March 28, 2013, Mr. Maruszki wrote FSCO and State Farm with the information that he was unable to act as counsel for Ms. Geng as communications had broken down. Ms. Geng signified her desire not to be represented by Mr. Maruszki and his firm by terminating contact with his office and by dealing with the insurer directly.

Mr. Maruszki appeared before me on April 2, 2013 to request that he and his firm be removed as solicitors of record for Ms. Geng. I am satisfied that he complied with Rule 9.7 of the Dispute Resolution Practice Code (DRPC) which sets out the requirements for withdrawal as a representative for an applicant. Mr. Maruszki had advised Ms. Geng of his intentions and confirmed his advice with a letter that was delivered to her personally by courier. State Farm took no position with respect to his request.

Result:

I order that Traffic Law Advocates and Mr. Miguel Maruszki be removed from the record as Ms. Geng’s representatives in these proceedings.

HEARING

The hearing was adjourned until 10:30 a.m. as Ms. Geng had not yet appeared. When the hearing commenced at 10:30 a.m., Ms. Geng failed to appear. State Farm brought a motion requesting an order that Ms. Geng’s application be dismissed. A Notice of Hearing dated October 3, 2012 had been served on the parties noting that a hearing would proceed at 10:00 a.m. on April 2, 2013 at the Financial Services Commission of Ontario. The Notice of Hearing indicated that the hearing would determine all issues in dispute and that if Ms. Geng or her representative did not attend at the hearing, the arbitrator could dispose of the case in their absence. The hearing proceeded.

The issues in this hearing are the following:

Should Ms. Geng’s Application for Arbitration be dismissed?
Is either party entitled to their expenses?

EVIDENCE AND ANALYSIS:

Ms. Geng did not appear and no evidence was filed in support of her application for arbitration. I find that there is no case for State Farm to meet as Ms. Geng has not discharged her burden of proof. Consequently, I order that Ms. Geng’s Application for Arbitration should be dismissed. This decision confirms the oral decision I gave at the hearing on April 2, 2013.

EXPENSES:

I heard submissions from State Farm about its entitlement to expenses. I heard no submissions about quantum of expenses. Rule 75.2 of the DRPC sets out the criteria for making an expense order. Based on those criteria, I find that the insurer is entitled to its expenses of the arbitration proceeding.

On April 18, 2013, Reisler Franklin forwarded a bill of costs to Ms. Geng and copied FSCO. The law firm, on behalf of State Farm, requested payment of $7,591.67 in expenses from Ms. Geng. As the parties have been unable to resolve the issue of quantum of expenses, an assessment of expenses hearing as provided for under Rule 79.2 of the DRPC will be conducted by me,g as requested by State Farm in its correspondence of May 6, 2013.

May 13, 2013

Judith Killoran Arbitrator

Date

Financial Services Commission of Ontario