Elenita Resurreccion v. State Farm Mutual Automobile Insurance Company, 2014 ONFSCDRS 190

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 190

FSCO A13-013547

BETWEEN:

ELENITA RESURRECCION

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Cindy Dymond

Heard: By Teleconference on October 23, 2014

Appearances: No one attended for Ms. Resurreccion

Ms. Jenna Ng for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Elenita Resurreccion, was injured in a motor vehicle accident on September 30, 2010. She sought statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Resurreccion 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 Preliminary Hearing are:

Should Ms. Resurreccion’s Application for Arbitration be dismissed?
Is Ms. Resurreccion liable to pay State Farm’s expenses in respect of her Arbitration, and if so, in what amount?

Result:

Ms. Resurreccion’s Application for Arbitration is dismissed.
State Farm is entitled to costs in the amount of $200.00 inclusive of HST.

EVIDENCE AND ANALYSIS:

A first Pre-Hearing was held on August 28, 2014. Ms. Resurreccion did not attend and Ms. Elvira Kodra, licensed paralegal with Zayouna Law Firm, Ms. Resurreccion’s representative, brought a motion requesting to be removed from the record as Ms. Resurreccion’s representative. The request was granted on the grounds that Ms. Kodra had lost contact with her client.

Ms. Jenna Ng, State Farm’s counsel, brought a motion to dismiss the claim. A Preliminary Issue Hearing was scheduled for October 23, 2014 at 2:00 p.m., by teleconference, at the offices of ADR Chambers.

Ms. Resurreccion was provided with notice of the Preliminary Issue Hearing at her last known address. She was informed that the Preliminary Issue Hearing was peremptory and that the Arbitration proceeding could be dismissed if she did not attend.

Ms. Resurreccion did not attend the scheduled Pre-Hearing, nor did she attend the Preliminary Issue Hearing. I was unable to reach her at her last known telephone number, and she did not attempt to contact me or ADR Chambers. As well, Ms. Resurreccion did not respond to my letter, nor did she request any further action in the present proceeding.

State Farm claimed costs in the amount of $200.00 inclusive of HST.

Applicable Law:

Rule 68 of the Dispute Resolution Practice Code states:

Dismissal of proceeding without hearing:

68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:

(a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and

(b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.

Rule 75 of the Dispute Resolution Practice Code states:

Award of expenses:

75.1 An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2 …

75.2 The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

(d) the conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

Dismissal of Arbitration:

State Farm requested the dismissal of this Arbitration proceeding. I have not heard from Ms. Resurreccion. I can only conclude that Ms. Resurreccion has in fact abandoned her Arbitration proceeding. I am taking into consideration that there is a pattern of non-attendance and that Ms. Resurreccion failed to fulfill her obligations to support her claim. As well, Ms. Resurreccion’s representative proved that she was unable to contact Ms. Resurreccion. I am satisfied that Ms. Resurreccion was given notice of all proceedings in this Arbitration process as required by the Dispute Resolution Practice Code.

Ms. Resurreccion bears the onus of proof to the benefits she claimed. Ms. Resurreccion failed to provide evidence to support her entitlement to this process. Since no evidence was presented to support her claims, this Arbitration proceeding is dismissed.

EXPENSES:

State Farm requested expenses of this Arbitration proceeding in the nominal amount of $200.00.

In awarding expenses, I am taking into consideration the relevant criteria, which include the party’s success in the proceedings and the conduct of the party that prolonged the proceeding unnecessarily. Ms. Resurreccion failed to pursue her claim, to instruct her counsel, and to attend the proceedings. Thus, State Farm is the successful party and is entitled to expenses. I take into consideration the time that State Farm’s counsel spent preparing responses to the Application for Arbitration, consulting with their client, preparing and attending the Pre-Hearing and the Preliminary Issue Hearing. I find the amount requested by State Farm to be reasonable. Therefore, State Farm is entitled to $200.00 inclusive of HST for its expenses of the Arbitration.

December 16, 2014

Cindy Dymond Date

Arbitrator