Petru Vicol v. State Farm Mutual Automobile Insurance Company, 2014 ONFSCDRS 16

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 16

FSCO A12-005402

BETWEEN:

PETRU VICOL

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

DECISION

Before: Pamila Ahlfeld

Heard: January 24, 2014 in at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.Written submissions were received on December 16, 2013

Appearances: Darrell P. March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Petru Vicol, was injured in a motor vehicle accident on March 16, 2010. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated benefits. The parties were unable to resolve their disputes through mediation, and Mr. Vicol 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 dispute are:

Should the arbitration be dismissed?
Should State Farm be awarded their expenses?

Result:

Mr. Vicol’s application for arbitration is dismissed.
State Farm’s expenses are set at $1,500.00.

Background

Mr. Vicol did not appear for his prehearing on December 12, 2013. The prehearing was set peremptory on Mr. Vicol.

Mr. Nadler appeared at the prehearing and requested to get off the record. In a letter dated December 18 2013, I allowed Mr. Nadler to withdraw. I further gave Mr. Vicol notice of my intention to dismiss the arbitration without a hearing on the basis that the proceeding is frivolous, vexatious or has been commenced in bad faith pursuant to section 68 of the Schedule. Mr. Vicol was also notified that State Farm was asking for $5,919.46 in expenses.

Mr. Vicol was given until January 24, 2014 to respond to the notice.

EVIDENCE AND ANALYSIS

I am satisfied from all the evidence in the file and the motion record that Mr. Vicol received notice of the motion and Notice of the Pre-Hearing on December 12, 2013. There is evidence that he was sent notice at his last known address and there is no returned mail in Mr. Vicol’s file. Additionally I am satisfied that Mr. Vicol was sent a notice to his last known address of my intention to dismiss the arbitration without a hearing. Again, I note there is no returned mail in Mr. Vicol’s file.

I am satisfied that Mr. Vicol has been notified of all of the different proceedings he was to attend at FSCO via mail to his last known address. The onus is on the Applicant to establish entitlement to claims made in his Application for Arbitration. Mr. Vicol has failed to meet this onus. Accordingly, I find that it is appropriate that the application for arbitration be dismissed.

EXPENSES:

When assessing expenses, arbitrators at FSCO determine entitlement and quantum by applying criteria dictated by the legislation.² I find that two criteria are applicable in these circumstances; “each party’s degree of success in the outcome of the proceeding,” and “any written offers to settle made in accordance with Rule 76.”

State Farm has supplied evidence of a written offer that had been rejected. In addition, Mr. Vicol, by not attending the arbitration proceedings at FSCO and by not responding to my notice given in my letter of December 18, 2013, did not succeed in asserting his claims for benefits and is not entitled to his expenses. State Farm as the “successful party”, is entitled to its reasonable expenses.

State Farm is requesting $5,919.46 in costs. I note that FSCO’s Insurer’s Response Fee has been added to the disbursements that are not a fee which I consider. Having regard to all of the costs and disbursements submitted and taking into account the two appearances of counsel for the insurer at FSCO, I fix the quantum of State Farm’s expenses at $1,500.00.

February 3, 2014

Pamila Ahlfeld

Arbitrator

Date