Linda Shaw v. State Farm Mutual Automobile Insurance Company, 2014 ONFSCDRS 33

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

Neutral Citation: 2014 ONFSCDRS 33

FSCO A10-002075

BETWEEN:

LINDA SHAW

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

MOTION TO DISMISS

Before: Pamila Ahlfeld

Heard: February 7, 2014, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Philippa Samworth for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Linda Shaw, was injured in a motor vehicle accident on January 30, 2007. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Benefits were subsequently denied by State Farm. The parties were unable to resolve their disputes through mediation, and Mrs. Shaw 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 Ms. Shaw’s Application for Arbitration be dismissed without a hearing under Rule 68 of the Code?

Result:

Ms. Shaw’s Application for Arbitration is dismissed. State Farm has waived expenses in this matter.

THE FACTS

An application for accident benefits was commenced by the Applicant on or about March 3, 2007. Mediation was held on or about March 19, 2010 and the application for arbitration was filed on or about July 7, 2010. The Applicant claimed in the application for arbitration that she had sustained a catastrophic impairment as a result of the motor vehicle accident.

A prehearing discussion was held on December 1, 2010 by teleconference and a hearing date was set down for December 5, 2011 with a resumption of the prehearing set for May 6, 2011 by teleconference. Further, a preliminary issue hearing was scheduled for September 2, 2011. The preliminary issue hearing was then adjourned as the Applicant agreed to attend an insurer’s examination to determine whether she sustained a catastrophic impairment as a result of the motor vehicle accident.

On November 23, 2011, the arbitration hearing was rescheduled to begin on July 3, 2012.² On June 8, 2012, an order was granted to the Applicant’s solicitors to withdraw from the record. Consequently, the hearing of July 3, 2012 was adjourned in order to give the Applicant time to retain new counsel.

According to the affidavit of George Nathanael dated January 10, 2014, filed at Tab 2 of the motion materials, efforts were made by the Insurer’s counsel to contact the Applicant by phone, mail and courier between May 2012 and February 2013. The Applicant did not respond.

On March 21, 2013, an arbitration hearing was rescheduled to commence on May 20, 2014 in Orillia. A resumption of the prehearing was scheduled for December 20, 2013 by teleconference. The Applicant did not participate at that prehearing. A message had been left on the FSCO case administrator’s voicemail that the Applicant was ill and could not attend.

A second prehearing was scheduled for February 7, 2014. The Applicant was advised to bring a doctor’s letter indicating the nature of her illness on December 20, 2013 that prevented her attendance at the prehearing. She was further advised that failure to attend the prehearing on February 7, 2014 could result in the dismissal of her application for arbitration pursuant to Rule 68 of the Dispute Resolution Practice Code (DRPC).

The Applicant did not appear for her prehearing on February 7, 2014.

Analysis

I am satisfied that the Applicant has been notified of the proceedings at FSCO by mail at her last known address. In fact, the evening prior to the December 20, 2013 prehearing, a voicemail was left indicating that the Applicant would not be attending. She therefore knew about the prehearing.

Many attempts have been made through FSCO to contact the Applicant by telephone including my own attempts on December 20, 2013 and February 7, 2014 but to no avail. The Applicant has not been in direct contact with FSCO for a significant period of time. In addition, I advised the Applicant in my letter of December 20, 2013 that her failure to appear could lead to a dismissal of her application pursuant to section 68 of the DRPC. There is no indication on the file that the Applicant has attempted to contact FSCO in any way. I have waited an additional week to give the Applicant time to contact FSCO but she has not done so.

Given that the Applicant has not appeared at two proceedings at FSCO and that she further has not provided any explanation for her non-appearance, I find on a balance of probabilities that she has abandoned her arbitration proceeding and the claims are therefore dismissed.

EXPENSES:

State Farm has agreed to waive their expenses.

February 26, 2014

Pamila Ahlfeld Arbitrator

Date