Priscilla Romero v. State Farm Mutual Automobile Insurance Company, 2014 ONFSCDRS 185

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

Neutral Citation: 2014 ONFSCDRS 185

FSCO A13-012448

BETWEEN:

PRISCILLA ROMERO

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Stuart J. Mutch

Heard: November 26, 2014 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Ms. Romero Mr. Ray Di Gregorio for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Priscilla Romero, was injured in a motor vehicle accident on January 21, 2010. Disputes arose between Ms. Romero and her insurer, State Farm Insurance Company (“State Farm”), concerning her entitlement to accident benefits payable under the Schedule¹ and Ms. Romero applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act², by way of application dated October 3, 2013.

BACKGROUND

By letter dated September 3, 2014, Ms. Romero’s counsel, Sara Cook of Fireman Steinmetz Daya asked for permission to withdraw as Ms. Romero’s representative. In the letter, Ms. Cook advised that she and members of her law firm had attempted to contact Ms. Romero by e-mail, telephone and letter as well as searching for her via Canada 411 and Facebook. Ms. Cook advised she and her law firm had had no contact with Ms. Romero since the FSCO mediation which took place on September 17, 2013.

Fireman Steinmetz Daya were removed as Ms. Romero’s solicitors of record as noted in the letter of Senior Arbitrator Macey dated September 11, 2014.

Arbitrator Alves was unable to make contact with Ms. Romero, despite several attempts to do so at the pre-hearing, which was conducted by teleconference on October 20, 2014. A hearing was scheduled for November 26, 2014 at noon at the offices of FSCO. A copy of the pre-hearing letter was sent to Ms. Romero’s last known address of 3 East 37th Street, Unit 115, Hamilton, Ontario L8V 4A7. A Notice of Hearing was sent to the same address. Rule 9.1(c) of the Code provides that FSCO is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records. By some oversight, this notice specified a time of 10:00 a.m. November 26, 2014.

The hearing of November 26, 2014

I attended the hearing room at 10:00 a.m. on November 26, 2014. No one was present. Given the discrepancy between the letter and the Notice of Hearing I attended again at 12 noon. Mr. Di Gregorio was in attendance. By 12:15 a.m. Ms. Romero had not appeared, nor was she in the waiting room.

Mr. Di Gregorio, on behalf of State Farm, requested that Ms. Romero’s claims be dismissed. He advised that he was not aware of any address for Ms. Romero other than the one in FSCO’s records.

Ms. Romero did not provide FSCO with any evidence in support of her claims. She has had no contact with FSCO since September of 2013. Rule 68 of the Dispute Resolution Practice Code permits an arbitrator to dismiss claims without a hearing.

In my view, Ms. Romero’s claims have become vexatious. The onus is on her to prove entitlement to the benefits she claims. She has not done so. Her claims are dismissed.

EXPENSES:

Counsel for State Farm asked for its expenses, including the filing fee paid by an insurer when an insured files an Application for Arbitration. The Expense Regulation does not permit me to award a filing fee paid by an insurer as an expense.

Mr. Di Gregorio attended by telephone at the October 20th pre-hearing and attended in person at the November 26th hearing. By failing to give State Farm and FSCO notice of her intention to proceed or not proceed with her claims Ms. Romero has effectively prolonged these proceedings and put State Farm to unnecessary expense.

Accordingly, I fix State Farm’s expenses at $250 for preparation for and attendance at the pre-hearing and $500 for attendance at the hearing for a total of $750 (inclusive of HST).

I order Ms. Romero to pay State Farm’s expenses at $750, inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

December 8, 2014

Stuart J. Mutch Arbitrator

Date