Neutral Citation: 2014 ONFSCDRS 179 FSCO A13-006052

BETWEEN:

BINH NGUYEN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Richard Feldman Heard: By way of written submissions, in accordance with Rule 68 of the Dispute Resolution Practice Code

Issues:

The issue to be decided at this time is:

Pursuant to Rule 68 of the Dispute Resolution Practice Code, should this application be dismissed without a hearing because it is frivolous, vexatious or was commenced in bad faith?

Result:

This application is dismissed.

EVIDENCE AND ANALYSIS:

The Applicant, Ms. Binh Nguyen, claims to have been injured in a motor vehicle accident on July 10, 2011. She applied for statutory accident benefits under the Schedule¹ from State Farm Mutual Automobile Insurance Company (“State Farm”). Disputes arose over the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation² and, in May 2013, Ms. Nguyen applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended. At the time this application was filed, the Applicant was represented by Paul Druxerman, barrister and solicitor. A Response was received from the Insurer in May 2013.

A pre-hearing conference was scheduled for July 31, 2014 and notice of the pre-hearing conference was sent by FSCO to both parties and to their respective legal representatives.

On July 31, 2014, a representative from State Farm appeared before me, along with counsel for State Farm, Shea Lewis. Neither the Applicant nor anyone from Mr. Druxerman’s office attended before me. State Farm then requested that this application be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code on the basis that the proceeding was frivolous, vexatious or was commenced in bad faith.

On July 31, 2014, I wrote to the Applicant at her last known mailing address (as well as to her solicitor of record, Mr. Druxerman), advising that it was my intention to grant State Farm's request to dismiss this application unless the Applicant could provide reasonable grounds for doing otherwise. I permitted the Applicant until August 29, 2014 to deliver any written submissions she wished me to consider, setting out the grounds upon which she objected to the dismissal of the proceeding or setting out any other issues or concerns. By August 29, 2014, I had not received any response to this letter from the Applicant or from anyone purporting to act on her behalf. I then provided State Farm with an opportunity to provide me with written submissions as to any orders it was seeking with respect to this matter. I received those submissions on September 17, 2014. State Farm requested an order dismissing this application.

On September 25, 2014, counsel for the Insurer advised me that she had just learned that Mr. Druxerman moved his practice to Chew Law Firm and she provided two business addresses for that firm where Mr. Druxerman might be reached. On September 29, 2014, I wrote to Mr. Druxerman at Chew Law Firm, advised him of the pending motion by the Insurer and permitted him until October 24, 2014 to serve and file any written submissions he wished me to consider on behalf of the Applicant. Correspondence sent by FSCO on September 30, 2014 by mail to the Applicant at her last known address was returned by Canada Post to FSCO as the Applicant had moved or was unknown at that address.

On October 10, 2014, Mr. Druxerman wrote to me and took the position that his failure and the failure of the Applicant to participate in the original pre-hearing discussion (on July 31, 2014) was inadvertent and the result of miscommunication between Mr. Druxerman and WCC Paralegal PC (the firm of paralegals that Mr. Druxerman states he believed had taken over carriage of the file). Mr. Druxerman confirmed that he remained counsel of record for the Applicant and advised that he had been able to communicate with and obtain instructions from the Applicant. He suggested that he thought that he would be able to negotiate a resolution to this matter shortly and indicated that he would be filing further written submissions by October 24, 2014. To my knowledge, no further communications have been received from Mr. Druxerman.

On November 3, 2014, I wrote to Mr. Druxerman and directed him to:

Immediately confirm to me in writing the Applicant’s current address and telephone number; and
By November 14, 2014, either:

a. Advise me in writing that this case has been settled; or

b. Communicate with opposing counsel and with the Case Administrator at FSCO to set a new date for the pre-hearing discussion that is convenient to the parties and to me.

I further advised Mr. Druxerman in this letter that if he failed to comply with these directions by November 14, 2014, I might deem this application to be frivolous and vexatious and proceed to dismiss the application pursuant to Rule 68 of the Dispute Resolution Practice Code without further notice.

Mr. Druxerman has failed to respond in any way to my letter of November 3, 2014. He has failed to comply with any of my directions.

While I do not have sufficient evidence before me to conclude that this application was commenced in bad faith, at this point, it appears to me that the Applicant has manifested no interest in pursuing these claims. This problem is further exacerbated by the failure of her solicitor of record to participate in these proceedings, appear before me or comply with my directions. It would be unreasonable to force the Insurer to expend more time or effort on this matter. In these circumstances, the proceeding has now become frivolous or vexatious. I shall grant the Insurer’s motion to dismiss this application pursuant to Rule 68 of the Dispute Resolution Practice Code.

November 25, 2014

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario