Celliah Balasubaramanim v. State Farm Mutual Automobile Insurance Co., 2014 ONFSCDRS 60

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 60

FSCO A13-003336

BETWEEN:

CELLIAH BALASUBARAMANIM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.

Insurer

REASONS FOR DECISION

Before: Stuart J. Mutch

Heard: March 21, 2014 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Balasubaramanim

Angelo Sciacca for State Farm

Issues:

The Applicant, Celliah Balasubaramanim, was injured in a motor vehicle accident on August 14, 2010. Disputes arose between Mr. Balasubaramanim and his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), concerning his entitlement to accident benefits payable under the Schedule¹ and Mr. Balasubaramanim applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.² Despite notice pursuant to Rule 68.2 of the Dispute Resolution Practice Code (the “Code”), Mr. Balasubaramanim did not appear for two pre-hearing resumptions. His Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

At the initial pre-hearing discussion, on November 20, 2013, Mr. Balasubaramanim attended with his counsel. At that time, his counsel indicated her intention to get off the record. A resumption of the pre-hearing was scheduled for February 14, 2014.

At the resumption, Mr. Balasubaramanim did not appear. His counsel indicated that Mr. Balasubaramanim had failed to attend two scheduled appointments and that the solicitor/client relationship had broken down. She was permitted to withdraw as Mr. Balasubaramanim’s representative.

A further resumption was set for March 21, 2014 at 1:00 p.m. at the offices of FSCO, peremptory on Mr. Balasubaramanim. In a letter dated February 14, 2014, Mr. Balasubaramanim was given notice under Rule 68 of the Code that his claims could be dismissed at that time, without a hearing.

Rule 68 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.

All correspondence, including the Notice of Hearing and Notice of Motion, was sent to Mr. Balasubaramanim at the address he provided to FSCO. 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.

On March 21, 2014, at the appointed time, Ms. Dunja Mullan of State Farm appeared as did Mr. Angelo Sciacca, State Farm’s counsel. Mr. Balasubaramanim did not appear.

Mr. Balasubaramanim has failed to appear for two pre-hearing resumptions. There is no evidence that he has communicated with FSCO regarding his intentions with regard to his Application for Arbitration. He has not provided FSCO with any written objections or submissions. At this point, Mr. Balasubaramanim’s claims have become vexatious.

Accordingly I dismiss the claims set out in his Application for Arbitration.

EXPENSES:

Aviva claimed its expenses as a result of Mr. Balasubaramanim’s non-attendance at two pre-hearing resumptions.

I note that Mr. Balasubaramanim attended the original pre-hearing on November 20, 2013 and that there was no reason to expect he would not attend the pre-hearing resumption on February 14, 2014. It was only following that date that he was given notice of an intention to dismiss his claim if he did not attend on March 21, 2014. By failing to give State Farm and FSCO notice of his intention to proceed or not proceed with his claims Mr. Balasubaramanim has effectively prolonged these proceedings and put State Farm to unnecessary expense.

Accordingly, I fix State Farm’s expenses thrown away at $300.00 (inclusive of HST).

I order Mr. Balasubaramanim to pay State Farm’s expenses at $300.00, inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

April 8, 2014

Stuart J. Mutch

Arbitrator

Date