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

Neutral Citation: 2015 ONFSCDRS 103

FSCO A13-011980

BETWEEN:

ZAHRA WARSAME

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Janet Davies

Heard: By telephone conference call on March 25, 2015

Appearances: Ms. Zahra Warsame did not participate Ms. Antonietta Alfano attended for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Zahra Warsame, was injured in a motor vehicle accident on June 29, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Warsame, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this Preliminary Hearing are:

Should Ms. Zahra Warsame’s Application for Arbitration be dismissed?
Is State Farm entitled to their expenses for this Arbitration proceeding?

Result:

Ms. Zahra Warsame’s Application for Arbitration is dismissed.
State Farm is entitled to their expenses of this Arbitration proceeding in the amount of $500.00.

EVIDENCE AND ANALYSIS:

Chronology

On September 23, 2013, the Financial Services Commission of Ontario received an Application for Arbitration filed on behalf of Ms. Warsame.

A Pre-Hearing discussion was scheduled for January 6, 2015, at the offices of ADR Chambers. Ms. Victoria Gorbenko (Kanevsky Law Office) attended for Ms. Warsame. Ms. Karla Barrett participated on behalf of State Farm, as did their legal counsel, Ms. Antonietta Alfano. Ms. Warsame did not attend. Ms. Gorbenko indicated that Ms. Warsame attended their office on December 15, 2014 and confirmed her attendance at the Pre-Hearing. Since then, she has not returned their phone calls. Ms. Antonietta Alfano requested that Ms. Warsame’s Application for Arbitration be dismissed with expenses should she fail to participate in any further proceedings.

On January 8, 2015, I received a request to be removed from the record from Kanevsky Law Office. On January 14, 2015, I notified Ms. Warsame of the request and of State Farm’s request to have her application dismissed with expenses. She was given until February 19, 2015 to provide either her counsel or ADR Chambers with instructions on how she wished to proceed with her application. As she did not contact her counsel and she did not respond to our correspondence, Kanevsky Law Office was removed from the record as her legal counsel.

On February 20, 2015, Ms. Warsame was notified she was now self-represented. The letter also notified her that a Preliminary Issue Hearing was scheduled for March 25, 2015 at 1:00 p.m., by telephone, to consider State Farm’s request to have her Application for Arbitration dismissed with their expenses of the Arbitration proceedings. She was also advised that if she wished to continue with her application, the Preliminary Issue Hearing would be converted to a Pre-Hearing. Ms. Alfano filed her motion to dismiss the application with expenses on March 20, 2015. On March 24, 2015, I followed up my correspondence with a voicemail message to Ms. Warsame with the particulars of the Preliminary Issue Hearing to take place on March 25, 2015. She did not return my call and did not participate in the proceeding.

Decision

Ms. Warsame has not participated in any of the Arbitration proceedings and has not contacted our office as requested.

Rule 68 of the Dispute Resolution Practice Code (DRPC) permits an Arbitrator to dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious or is commenced in bad faith providing written notice has been given to the parties of the intention to dismiss the proceedings.

I am satisfied that Ms. Warsame was given notice of the Preliminary Issue Hearing as required by Rule 68(2) of the DRPC at her last known address contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC.

I am satisfied that Ms. Warsame was given the opportunity to make submissions should she wish to object to the dismissal as required by Rule 68(3) of the DRPC.

Therefore, Ms. Warsame’s Application for Arbitration is dismissed without a Hearing under Rule 68(1) of the DRPC on the basis that the application was frivolous, vexatious or was commenced in bad faith as she failed to participate in the proceedings.

EXPENSES:

State Farm is granted expenses in the amount of $500.00 in “throw away” costs in having to defend and participate in the Arbitration proceedings. This amount is payable forthwith. In awarding these costs, I have considered Rules 75.2 and 78(1) of the DRPC and found that Ms. Warsame, being aware, had prolonged and hindered the Arbitration proceedings.

May 13, 2015

Janet Davies Arbitrator

Date