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

Neutral Citation: 2014 ONFSCDRS 198

FSCO A13-012860

BETWEEN:

NASIR ALAKOOZI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Jeffrey Rogers

Heard: December 3, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ms. Julie Populus, solicitor for Pace Law Firm seeking removal from the record; Mr. Thomas Hughes, solicitor for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Nasir Alakoozi, was injured in a motor vehicle accident on May 8, 2010. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose regarding his entitlement to certain claimed benefits. The parties were unable to resolve their disputes through mediation, and Mr. Alakoozi 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 hearing are:

Should Pace Law be removed from the record as Mr. Alakoozi’s representative?
Should this arbitration be dismissed because Mr. Alakoozi did not present evidence in support of his claims?
Is State Farm entitled to its expenses of the arbitration, and if so, in what amount?

Result:

Pace Law Firm is removed from the record as Mr. Alakoozi’s representative.
This arbitration is dismissed.
Mr. Alakoozi shall pay State Farm its expenses in the amount of $1,500.

EVIDENCE AND ANALYSIS:

Pace Law Firm removed from the record

Productions that State Farm received after the pre-hearing discussion in this case confirmed its suspicion that Mr. Alakoozi was injured in another accident on June 4, 2011, and that he submitted a claim to another insurer for accident benefits regarding that accident. The productions disclosed that Mr. Alakoozi alleged that he was working at the time of the second accident and that the second insurer paid him a large sum for income replacement benefits. These facts were not consistent with the information that Mr. Alakoozi had provided in claiming entitlement to income replacement benefits in this arbitration.

Pace Law Firm commenced this arbitration as Mr. Alakoozi’s representative. After his duplicity was exposed, Pace Law Firm informed him that it could not continue to represent him. The pre-hearing Arbitrator scheduled this hearing, together with a motion by Pace Law Firm seeking removal from the record as Mr. Alakoozi’s representative. Mr. Alakoozi did not attend the hearing.

I am satisfied that Mr. Alakoozi was given proper notice of the motion at his last known address, pursuant to Rule 7 of the Dispute Resolution Practice Code. I am satisfied that Mr. Alakoozi was aware of the motion, as indicated in paragraph 12 of the affidavit of Zenan Babb, filed in support of the motion. I am satisfied that there has been a breakdown in the solicitor/client relationship. I have therefore ordered that Pace Law Firm be removed from the record as Mr. Alakoozi’s representative.

Dismissal of arbitration

Mr. Alakoozi did not attend the hearing. I am satisfied that Mr. Alakoozi was given proper notice of the hearing at his last known address. Since his duplicity was exposed, Mr. Alakoozi has provided no information that indicates an intention to pursue this arbitration.

Mr. Alakoozi bears the onus of proving entitlement to the benefits he claimed. No evidence having been presented in support of his claims, this arbitration is dismissed.

EXPENSES:

I find that State Farm is entitled to its expenses of this arbitration, based on its success.

State Farm claims fees and disbursements in the amount of $1,500. This arbitration required State Farm’s participation in three pre-hearing discussions and its attendance for the hearing. I find State Farm’s claim for fees and disbursements to be reasonable in the circumstances. Mr. Alakoozi is ordered to pay the amount claimed.

State Farm also claims repayment of the assessment fee of $3,000. Counsel conceded that there is no statutory authority to make such an order but submitted that there is equitable jurisdiction to do so.

Arbitrators have consistently ruled that their jurisdiction to award disbursements is limited to those matters set out in the Schedule to O. Reg 664 (the Expense Regulation).² Section 7 of the Schedule allows refund of the assessment fee in limited circumstances. The circumstances do not exist here.

Jurisprudence has established that Arbitrators have implicit power to apply equitable principles in exercising jurisdiction explicitly conferred by statute. However, they do not have the authority to grant equitable relief³. Therefore, the equitable jurisdiction that an Arbitrator might exercise cannot expand the explicit statutory limits on the circumstances for refund of the assessment fee. State Farm’s request for such an order is denied.

December 22, 2014

Jeffrey Rogers Date

Arbitrator