Neutral Citation: 2014 ONFSCDRS 140 FSCO A13-001763

BETWEEN:

EVAN PREWITT Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Alec Fadel Heard: August 25, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeared for Mr. Prewitt Jennifer Arduini for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Evan Prewitt, was injured in a motor vehicle accident on March 4, 2011. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ A dispute arose concerning entitlement to various benefits and the parties were unable to resolve their disputes through mediation. Mr. Prewitt 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:

Is Mr. Prewitt entitled to receive a non-earner benefit at the rate of $185.00 per week from September 2, 2011 to date and ongoing?
Is Mr. Prewitt entitled to receive a medical benefit set out as follows?

Universal Injury Rehabilitation Inc. (a) $200.00 – April 29, 2011. (b) $1,384.67 – April 29, 2011. (c) $200.00 – April 29, 2011. (d) $382.56 – April 29, 2011.
Is Mr. Prewitt entitled to attendant care benefits at the rate of $766.00 per month from March 30, 2011 to September 30, 2011?
Is Mr. Prewitt entitled to payments for the cost of examinations in the amount of $944.80 for services at Assessment Direct dated March 15, 2011?
Is State Farm liable to pay Mr. Prewitt’s expenses in respect of the arbitration?
Is Mr. Prewitt liable to pay State Farm’s expenses in respect of the arbitration?
Is Mr. Prewitt entitled to interest for the overdue payment of benefits?

Result:

The application for arbitration is dismissed.
Mr. Prewitt shall pay State Farm’s expenses of the arbitration in the total amount of $2,281.00.

EVIDENCE AND ANALYSIS:

An application for arbitration was received by the Commission on February 7, 2013 and the insurer’s response was received dated March 4, 2013. A pre-hearing discussion was conducted on October 10, 2013 by teleconference. The applicant was not in attendance but he was represented by a licensed paralegal at the time. The pre-hearing letter is silent on the anticipated involvement of the applicant.

A motion was held on June 13, 2014 at the request of the applicant’s paralegal for an order removing his firm as representative of record for the applicant. The arbitrator hearing the motion granted the relief. In his letter, the arbitrator states the following:

I am also satisfied that the applicant’s representative has made numerous unsuccessful attempts over an extended period of time to contact the applicant by mail, by telephone and through intermediaries who might have knowledge of the applicant’s whereabouts. There has been a complete breakdown in the relationship between the applicant and his representative.

I presided over the hearing that commenced on August 25, 2014 and the applicant did not appear. I telephoned the applicant at the number on file but the number was no longer in service. I also waited for 30 minutes before proceeding to allow time for the applicant to arrive.

The insurer asked that I dismiss the proceeding and that it be awarded its expenses.

A notice of hearing was sent by the Commission to the parties on October 10, 2013 clearly stating that the hearing would be held on Monday August 25, 2014 and run until August 28, 2014. I therefore find that the applicant had sufficient notice of the hearing.

I note that section 7 of the Statutory Powers Procedure Act states:

7.(1) 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 and the party is not entitled to any further notice in the proceeding.

In addition, Rule 37.7 of the Code states:

37.7 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.

Based on the above, I find that the applicant received notice of the hearing and failed to appear to give evidence. Consequently, he failed to establish entitlement to the benefits claimed and his claims for various accident benefits is dismissed.

EXPENSES:

Section 282 (11) of the Insurance Act states:

Expenses

(11) The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

The insurer submitted that it was entitled to its expenses of the arbitration and provided its “expenses outline” which showed a total number of hours of 20.3 all expended by counsel who appeared for the hearing. Her year of call is 2012.

It is clear that the applicant has not met with success in asserting his claim. Accordingly, I find that the insurer is entitled to part of its expenses of the arbitration.

The amount claimed for preparation for the hearing was $4,761.00 in legal hours and $43.85 in disbursements. While neither amount is unreasonable, in fact the amount of hours spent on the file seems light, I am only able to set the hourly rate based on the Legal Aid tariff. The legal aid rate for a lawyer of Ms. Arduini’s year of call is $98.99 per hour. I find that 20 hours is reasonable. The insurer is therefore entitled to its expenses as follows:

Legal Hours: 20 x $98.99 = $1,979.80 plus HST ($2,237.17)

Disbursements: $43.85

I find that the insurer is entitled to its expenses in the total amount of $2,281.00 including HST.

August 26, 2014

Alec Fadel Arbitrator

Date

Financial Services Commission of Ontario