Neutral Citation: 2014 ONFSCDRS 8 FSCO A12-001104

BETWEEN:

IGOR GANELIN 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, Igor Ganelin, 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. Ganelin 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. The Applicant did appear on that date. With the Applicant's consent, his legal representative was removed from the record at that time.

State Farm indicated that the Applicant had previously failed to provide requested documentation (or signed authorizations that would permit State Farm to obtain the documents it was seeking) and that the Applicant had failed to attend an examination under oath. The Applicant promised that, if the pre-hearing were adjourned, he would attend an examination under oath and sign the necessary authorization forms prior to the resumption of the pre-hearing discussion. On consent, the pre-hearing discussion was adjourned until September 27, 2013 at 2:00 p.m. I wrote to the Applicant on March 20, 2013 to confirm all of the above.

On September 27, 2013, the Applicant failed to appear before me 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 behalf of the Applicant.

State Farm advised that the Applicant still had not executed the authorization forms that were provided to the Applicant and that the Applicant failed on two occasions to attend an examination under oath. Based upon the Applicant's failure to fulfill his undertakings and his failure to appear before me on 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. Ekhlas Smith requesting, on behalf of State Farm, an order dismissing this application and awarding to State Farm approximately $5,000.00 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 fulfill his undertakings and 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 $5,089.50. 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 $3,000. 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

Date

Financial Services Commission of Ontario