Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2014 ONFSCDRS 99
FSCO A12-002942
BETWEEN:
DARREN JOHN
Applicant
and
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Insurer
MOTION TO DISMISS
THE ARBITRATION PROCEEDING
Before: Susan Sapin
Heard: By telephone conference call on February 14, 2014
Motion Record from State Farm received November 12, 2013
Appearances: Shahen Alexanian for Mr. John
Bobby Thakolkaran for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Darren John, was injured when he was struck by a motor vehicle while riding his bike on November 5, 2010. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule,1 on November 30, 2010. State Farm commenced adjusting the claim and various disputes arose. The parties were unable to resolve their disputes through mediation, and Mr. Alexanian submitted an Application for Arbitration to the Financial Services Commission of Ontario on Mr. John’s behalf, under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
Should Mr. John’s application for arbitration be dismissed?
Is State Farm entitled to its costs thrown away in this arbitration proceeding?
Result:
Mr. John’s application for arbitration is dismissed.
State Farm is entitled to its costs thrown away, fixed at $500.
REASONS:
I find Mr. John’s application for arbitration should be dismissed without a hearing under Rule 68 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) because he has failed to take any steps to pursue his claims in a timely manner or to participate in the proceedings, rendering his claims vexatious. Mr. John failed to provide any reasons, in writing, why his arbitration should not be dismissed, as required by Rule 68.
The facts supporting this decision are as follows.
Mr. John did not attend the first scheduled pre-hearing on August 7, 2013. Mr. Anton Serikov, paralegal, attended and represented Mr. John, but provided no explanation for why Mr. John was not available.
Mr. John was ordered to produce, within 60 days, all documents relevant to the issues in dispute, including information about two motor vehicle accidents that occurred on June 23, 2009 and March 3, 2010.
The pre-hearing was resumed on October 29, 2013, on the understanding that Mr. John would participate. Mr. Thakolkaran, counsel for State Farm, and Ms. Risha Maharaj, claims adjuster, attended on behalf of State Farm. Mr. John did not attend, and neither I nor his representative, Mr. Serikov, who participated by telephone, were able to reach Mr. John by telephone. At Mr. Serikov’s suggestion, I attempted to contact his colleague, Mr. Alexanian, but was unable to reach him at the telephone numbers provided.
Mr. John did not produce the documents he was ordered to produce. No explanation was provided by either Mr. Serikov, or by Mr. Alexanian, who telephoned me later that day, after the pre-hearing resumption was concluded, for why the documents were not produced, or why Mr. John was not available to participate in the pre-hearing for the second time, despite being notified.
Accordingly, State Farm stated its intention to bring a motion to dismiss Mr. John’s application for arbitration under Rule 68, on the basis that it was vexatious and an abuse of process, and requested its costs thrown away of $500 for two fruitless attendances at the Commission.
I advised the parties by letter dated November 14, 2013, that I would resume the pre-hearing and would hear State Farm’s motion to dismiss the proceedings under Rule 68, at a date mutually convenient to the parties. As required by the Rule, I advised Mr. John that if he objected to the dismissal of his application for arbitration without a hearing, he was required to provide the grounds of his objection in writing. I required the parties to arrange for a mutually convenient date for an in-person resumption of the pre-hearing.
I also ordered that Mr. John produce the documents requested by State Farm in its letter dated August 7, 2013, or provide proof of best efforts, within 60 days.
On consent of the parties, the second resumed pre-hearing and Rule 68 Motion to dismiss without a hearing were scheduled for February 14, 2014.
I am satisfied that both Mr. Alexanian and Mr. John were properly served with my letter of November 14, 2013. The letter was mailed to Mr. John at the address he provided to the Commission, and was not returned as undeliverable.
A fax received from Mr. Serikov on February 12, 2014, at 4:26 p.m., confirms that Mr. John was presumably aware of the date, although the fax states, somewhat inexplicably:
Mr. John wishes to pursue his accident benefits claim and, in particular, his Application for Arbitration, therefore, he will not be available for the resumption of pre-hearing on February 14, 2014. Mr. John gave our office, as his legal representatives, full authority to act on his behalf. We consider that Mr. John’s presence is not necessary, because the resumption is for production issues.
I do not see how Mr. John or his representative could have misunderstood the purpose of the pre-hearing resumption. Regardless, I received no written grounds objecting to the dismissal of his application for arbitration without a hearing, as required by Rule 68, nor any explanation for why documents he was ordered to produce were not forthcoming.
For the reasons above, Mr. John’s application for arbitration is dismissed.
EXPENSES:
I find that State Farm is entitled to its costs thrown away of $500 for three attendances at the Commission in this matter.
June 13, 2014
Susan Sapin
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2014 ONFSCDRS 99
FSCO A12-002942
BETWEEN:
DARREN JOHN
Applicant
and
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. John’s Application for Arbitration is dismissed.
Mr. John shall pay to State Farm its expenses of this proceeding, fixed at $500.00.
June 13, 2014
Susan Sapin
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.