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

Neutral Citation: 2014 ONFSCDRS 78

FSCO A13-011448

BETWEEN:

MELVIN AGUILAR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Richard Feldman

Heard: April 24, 2014, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Aguilar Kevin Motley for State Farm Mutual Automobile Insurance Company

Issues:

The issues in this hearing, as identified in the Application for Arbitration and the pre-hearing letter of Arbitrator Alves, dated March 18, 2014, are as follows:

Is Mr. Aguilar entitled to receive a weekly income replacement benefit of $400.00 per week from December 29, 2010 to the present and ongoing?
Is Mr. Aguilar entitled to receive a medical benefit for goods and services recommended in a treatment/assessment plan dated May 9, 2011 from Main Street Health Recovery in the amount of $827.67 and a further $499.49 for outstanding goods and services claimed?
Is Mr. Aguilar entitled to $1,823.00 for a psychological assessment by Toronto Assessment Centre in accordance with a plan dated August 5, 2011?
Is State Farm liable to pay Mr. Aguilar’s expenses in respect of the arbitration?
Is Mr. Aguilar liable to pay State Farm’s expenses in respect of the arbitration?
Is Mr. Aguilar entitled to interest for the overdue payment of benefits?
Is Mr. Aguilar entitled to a special award?

Result:

The Applicant’s claims are dismissed.
The Applicant shall pay to the Insurer its expenses of this proceeding, fixed in the amount of $2,500.00, inclusive of all fees, disbursements and any applicable taxes.

BACKGROUND:

The Applicant, Melvin Aguilar, claims that he was injured in a motor vehicle accident on December 22, 2010. He 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 accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Aguilar applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Shortly after the Application for Arbitration was served and filed, the Applicant’s legal representatives sought and were granted permission to remove themselves from the record on the basis that they had lost contact with the Applicant and could not locate him. The Applicant failed to participate in the pre-hearing discussion on March 18, 2014. The hearing was then scheduled for April 24, 2014. Notice of the hearing was sent by FSCO to the Applicant at three of his known residential addresses (including his last known address).

EVIDENCE AND ANALYSIS:

This hearing was scheduled to commence at 10:00 a.m. on April 24, 2014 at the offices of FSCO. At that time, Mr. Motley, counsel, appeared on behalf of the Insurer. By approximately 10:30 a.m., the Applicant had still not appeared nor did anyone appear on his behalf. In the presence of Mr. Motley, I attempted to contact the Applicant by telephone but his last known telephone number was no longer in service. Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, and being satisfied that the Applicant had been properly served at his last known address with the Notice of Hearing, the arbitration proceeded in his absence. As the Applicant did not attend to present any evidence, he failed to prove his entitlement to any of the benefits claimed and I dismiss his claims.

EXPENSES:

The Insurer is seeking its expenses in the total amount of approximately $3,100.00, related to its counsel reviewing the file, providing it with a legal opinion, preparing a Response, preparing for and participating in the pre-hearing conference, preparing motion materials (seeking a dismissal of the application due to the apparent abandonment of the proceeding by the Applicant) and preparing for and attending before me on April 24, 2014. In the circumstances of this case, including the complete success of the Insurer and the apparent abandonment of this proceeding by the Applicant, I find that the Insurer is entitled to its expenses of this arbitration proceeding, fixed in the sum of $2,500.00, inclusive of all fees, disbursements and any applicable taxes.

May 9, 2014

Richard Feldman Arbitrator

Date