Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 23 FSCO A12-007837

BETWEEN:

SIVANANTHAN THIYAGARAJAH Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Deborah Pressman Heard: October 22, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Sivananthan Thiyagarajah not appearing Raul Martinez, for counsel of record for the Motion Bita Rajaee for State Farm Mutual Automobile Insurance Company

Background:

The Applicant, Sivananthan Thiyagarajah, claimed to have been injured in a motor vehicle accident on April 20, 2010. He applied for 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 over entitlement to benefits through mediation and Mr. Thiyagarajah applied for arbitration at the Financial Services Commission of Ontario (FSCO).²

Despite proper notices, Mr. Thiyagarajah failed to participate in the arbitration process. Mr. Thiyagarajah did not appear at the pre-hearing discussion on July 22, 2013. The pre-hearing proceeded in his absence, his counsel requested to withdraw as his representative, and State Farm requested its expenses of the arbitration. I scheduled a motion to withdraw and his arbitration hearing on October 22, 2013. Although Mr. Thiyagarajah was advised of the consequences of his non-attendance by my letter of July 25, 2013 and Notices dated July 30, 2013, he did not appear at the motion or the hearing.

Issues:

1. Should Pace Law Firm be removed as Mr. Thiyagarajah's representative in this proceeding?
2. Should Mr. Thiyagarajah's Application for Arbitration be dismissed?
3. Is State Farm entitled to its expenses in the amount of $750.00?

Result:

1. Pace Law Firm is removed as Mr. Thiyagarajah's representative in this proceeding.
2. Mr. Thiyagarajah's Application for Arbitration is dismissed.
3. State Farm is entitled to its expenses in the amount of $750.00.

EVIDENCE AND ANALYSIS:

For the reasons that follow, Pace Law Firm is permitted to withdraw as Mr. Thiyagarajah's representative, Mr. Thiyagarajah's claims are dismissed, and State Farm is entitled to its expenses of this arbitration in the amount of $750.00.

The withdrawal of Mr. Thiyagarajah's representative was not contested. I am satisfied that Mr. Thiyagarajah was properly served with the Notice of Motion and Motion Record and has been given an opportunity to respond. I am also satisfied that a breakdown in the solicitor-client relationship has occurred and, pursuant to Rule 9.8 of the Dispute Resolution Practice Code (Fourth Edition, Updated - August 2011) (DRPC), I am permitting Pace Law Firm to be removed as Mr. Thiyagarajah's representative in this proceeding, without terms.

With respect to the accident benefits claims, I am satisfied that Mr. Thiyagarajah was given notice of this hearing³ at his last known address, as required by the DRPC and the SPPA.⁴ Mr. Thiyagarajah has not informed FSCO of any change in address or contact information. Pursuant to Rule 37.7 of the DRPC, the arbitration hearing proceeded in his absence. Mr. Thiyagarajah bears the onus of proving entitlement to the claimed accident benefits. Since he did not appear at the hearing and no evidence was presented to support his claims, this arbitration is dismissed.

EXPENSES:

I find that State Farm is entitled to its expenses of the arbitration, which I fix at $750.00.

When assessing expenses, arbitrators at FSCO determine entitlement and quantum by applying criteria dictated by the legislation.⁵ I find that only the first criterion, "each party's degree of success in the outcome of the proceeding," is relevant. Mr. Thiyagarajah did not succeed in asserting his claims for benefits and is not entitled to his expenses. State Farm, as the "successful party", is entitled to its reasonable expenses.

State Farm claimed a reasonable amount of $750.00 (inclusive of HST) for its legal expenses of the arbitration. Pursuant to subsection 282(11) of the Insurance Act, Mr. Thiyagarajah is ordered to pay State Farm's expenses in the amount of $750.00, inclusive of HST.

February 13, 2014

Deborah Pressman Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 23 FSCO A12-007837

BETWEEN:

SIVANANTHAN THIYAGARAJAH Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Pace Law Firm is removed as Mr. Thiyagarajah's representative in this proceeding.
2. Mr. Thiyagarajah's Application for Arbitration is dismissed.
3. State Farm is entitled to its expenses in the amount of $750.00.

February 13, 2014

Deborah Pressman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
3. 3Notice of Hearing dated July 30, 2013.
4. 4Rule 9.1(c) of the DRPC, and section 6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
5. 5Under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, an arbitrator may award expenses to either party according to criteria prescribed in subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664.