Financial Services Commission of Ontario
Neutral Citation: 2014 ONFSCDRS 7
FSCO A12-001014
BETWEEN:
ELNUR AMIRKHANOV Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Richard Feldman
Heard: By written submissions received by November 19, 2013
Issues:
The Applicant, Elnur Amirkhanov, applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 Disputes arose concerning the Applicant's entitlement to certain benefits and the parties were unable to resolve their disputes through mediation. Mr. Amirkhanov then applied for arbitration at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The pre-hearing conference was originally scheduled to take place on March 20, 2013 at FSCO.
On that date, the Applicant failed to attend. His lawyer at that time, Mr. Rubin, had already lost contact with the Applicant and brought a motion, returnable on March 20, 2013, for an order permitting him to be removed from the record as the Applicant's legal representative. I granted that motion and adjourned the pre-hearing conference until September 27, 2013 at 10:00 a.m.
I wrote to the Applicant on March 20, 2013, at his last known address, and advised him of the new date for this pre-hearing conference. I also asked him to contact FSCO to confirm his address and telephone number and to advise if he wished the next pre-hearing conference to take place by telephone. This letter was not returned to FSCO so I assume that the Applicant received it. The Applicant did not respond to that letter.
On September 27, 2013, the Applicant again failed to attend or otherwise communicate with FSCO. Ms. Dunja Mullan participated on behalf of State Farm. Waheeda Ekhlas Smith, legal counsel, represented State Farm. We waited for 30 minutes but no one appeared on the Applicant's behalf.
Based upon the Applicant's failure to appear before me on March 20, 2013 and September 27, 2013, State Farm requested that I dismiss this application because it had become frivolous and vexatious.
Pursuant to Rule 68 of the Dispute Resolution Practice Code, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.
On September 27, 2013, I wrote to the Applicant to advise him that it was my intention to grant the Insurer's request to dismiss this application unless the Applicant could provide reasonable grounds for doing otherwise. In accordance with Rule 68.3, I advised the Applicant that if he wished to dispute such a dismissal, he had twenty days in which to serve upon State Farm and file with me any written submissions he wished me to consider, setting out the grounds upon which he objected to the dismissal of this proceeding or setting out any other issues or concerns.
By October 31, 2013, I still had received no written response from the Applicant. I then wrote to counsel for State Farm to request written submissions as to any order(s) being sought by the Insurer with respect to this matter.
On November 19, 2013, I received a letter from Ms. Smith requesting, on behalf of State Farm, an order dismissing this application and awarding to State Farm approximately $4,300.00 in legal expenses.
The issues in this hearing are:
Should this application be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code?
Is State Farm entitled to its expenses of this proceeding pursuant to s. 282(11) of the Insurance Act?
Result:
This application is dismissed.
The Applicant shall pay to the Insurer its expenses of this proceeding, fixed in the sum of $1,500.00.
ANALYSIS:
The Applicant has abandoned this proceeding. He has failed to attend before me when required to do so. He has also failed to provide me with written submissions when provided with an opportunity to express a desire to pursue these claims and to explain his past conduct. Consequently, I agree with the Insurer that this proceeding has become vexatious. Pursuant to Rule 68 of the Dispute Resolution Practice Code, I shall dismiss this application.
EXPENSES:
State Farm has requested an order that the Applicant pay its expenses of this proceeding. Counsel for State Farm has submitted a "Bill of Costs" related to this matter. No disbursements are claimed. Fees are claimed in the total amount of $4,297.75. This amount, however, was based upon the actual hourly rates charged by counsel and was not based upon the Legal Aid rates permitted under FSCO's Expense Regulation. At the permissible Legal Aid rates, the maximum total fees that I could grant in this case would be about $2,800.00. I find the number of hours that seem to have been claimed to be somewhat excessive given the early stage of the proceeding. Nevertheless, the Insurer should be compensated at an appropriate rate for the services of its legal representatives in reviewing the file, preparing a Response and preparing for and attending at two pre-hearing conferences. I hereby fix those expenses at $1,500.00 (inclusive of all fees, disbursements and any applicable taxes).
January 15, 2014
Richard Feldman Arbitrator
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
This application is dismissed.
The Applicant shall pay to the Insurer its expenses of this proceeding, fixed in the sum of $1,500.00.
January 15, 2014
Richard Feldman Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.