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

Neutral Citation: 2014 ONFSCDRS 112

FSCO A12-000108

BETWEEN:

ABDI MALIN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Edward Lee Heard: By written submissions, April 30, 2014 Appearances: No one made representations for Mr. Malin Bita-Mehrin Rajaee for State Farm Mutual Automobile Insurance Company

The Applicant, Abdi Malin, made a claim for accident benefits. In a decision dated March 31, 2014, I dismissed his claim for statutory accident benefits under the Schedule.¹ I reserved on the issue of expenses.

The issue in this further hearing is:

Is State Farm entitled to their expenses incurred in respect of this arbitration hearing?
If the answer to the first question is ‘yes’, what is the amount of expense to which State Farm is entitled?

Result:

State Farm is entitled to expenses incurred in respect of this hearing.
State Farm is entitled to $2,000.00 as expenses in respect of this arbitration hearing, inclusive of all costs, disbursements, and taxes.

BACKGROUND:

I conducted a pre-hearing discussion in this matter on September 10, 2013. Mr. Malin attended at that pre-hearing discussion. A further pre-hearing was scheduled on that day to take place on December 6, 2013. Mr. Malin’s former counsel then served a motion to withdraw as Mr. Malin’s representative. That motion would be heard on December 6, 2013.

On December 6, 2013, Mr. Malin did not attend. I heard the motion and permitted Mr. Malin’s former counsel to withdraw as representative. I then wrote a letter to Mr. Malin informing him of my decision and that I had scheduled his hearing for March 21, 2014. I also stated that the hearing could proceed in his absence.

Mr. Malin did not respond to my letter. He did not attend the hearing on March 21, 2014, although a representative of State Farm did. On that date, I dismissed Mr. Malin’s application. In my decision, I gave the parties thirty days to submit all evidence and submissions in regard to the issue of expenses. State Farm provided me with documentation, but Mr. Malin has provided nothing.

ANALYSIS:

State Farm was entirely successful in this matter and they are entitled to expenses. Arbitral case law has held that the overriding consideration in fixing arbitration expenses is reasonableness. It is appropriate to take a broad-minded, pragmatic approach.²

In the present case, State Farm has appeared before me in at the offices of the Financial Services Commission of Ontario on three occasions. Two of the attendances proceedings were short, lasting less than an hour. One attendance lasted approximately two hours. No actual arbitration hearing was ever conducted, and State Farm had notice that no preparation was required for the March 21, 2014 hearing date. I do note that Mr. Malin failed to attend two previously scheduled examinations under oath. Having regard to the total time spent by counsel, legal assistants, and others in the preparation and conduct of this matter, I find it reasonable to award $2,000.00 to State Farm as expenses, inclusive of all disbursements, costs, and taxes.

July 4, 2014

Edward Lee Arbitrator

Date

Financial Services Commission of Ontario