Jamil Toma v. State Farm Mutual Automobile Insurance Co., 2014 ONFSCDRS 171

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

Neutral Citation: 2014 ONFSCDRS 171

FSCO A13-006283

BETWEEN:

JAMIL TOMA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.

Insurer

REASONS FOR DECISION

Before: Stuart J. Mutch

Heard: October 17, 2014, by teleconference

Appearances: Joseph Nguyen for Mr. Toma J.C. Rioux for State Farm

Background

The Applicant, Jamil Toma, was involved in a motor vehicle accident on April 20, 2010. Mr. Toma died in July of 2012, of causes unrelated to the accident. Disputes arose between Mr. Toma and his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), concerning his entitlement to accident benefits payable under the Schedule¹ and Mr. Toma’s counsel applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.²

A pre-hearing discussion was held at the office of FSCO on January 15, 2014 at the offices of FSCO, attended by Mr. Toma’s widow, Joseph Nguyen, paralegal, Ms. Dunja Mullans of State Farm and Ms. Catherine Zingg, legal counsel for State Farm. It was agreed that the arbitration process could not go forward until an administrator or representative of Mr. Toma’s estate was appointed. Mr. Nguyen was advised to book a resumption of the pre-hearing once that process had been completed.

On May 22, 2014 counsel for State Farm wrote to Mr. Nguyen and FSCO requesting a resumption of the pre-hearing. On September 30, 2014 State Farm served and filed a motion requesting the dismissal of Mr. Toma’s Application for Arbitration. The motion was heard by teleconference.

Analysis

At the hearing of the motion, counsel for State Farm requested the dismissal of Mr. Toma’s claims on the basis that they were not being prosecuted.

Mr. Nguyen advised that Mr. Toma’s family had not taken steps to have an estate trustee appointed and had no plans to do so.

Mr. Toma has been deceased for more than two years. A deceased person cannot pursue accident benefits. A legally appointed representative, either an executor or an estate trustee can “stand in the shoes” of the deceased and pursue a claim for accident benefits. No such person exists in this claim, nor, apparently, are there any plans to appoint a trustee. There is some question in my mind as to whether the dispute resolution process was properly commenced, given the lack of an executor or estate trustee.

In my view, Mr. Toma’s claims have become vexatious, as there is no legally viable way of pursuing them. Mr. Nguyen consented to the dismissal of Mr. Toma’s claims. State Farm did not make an expense request.

Result

Mr. Toma’s claims, as set out in his Application for Arbitration, are dismissed, on consent. There is no order as to expenses.

October 20, 2014

Stuart J. Mutch Arbitrator

Date