Neutral Citation: 2015 ONFSCDRS 104 FSCO A14-000100

BETWEEN:

AMINA SHEIKH Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies Heard: By telephone conference call on March 25, 2015

Appearances: Ms. Amina Sheikh did not participate Ms. Svetlana Zheku participated for Ms. Amina Sheikh Ms. Antonietta Alfano attended for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Amina Sheikh, 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. Sheikh, 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 Kanevsky Law Office be removed from the record as Ms. Sheikh’s legal counsel?
Should Ms. Sheikh’s Application for Arbitration be dismissed?
Is State Farm entitled to their expenses for the Arbitration proceeding?

Result:

Kanevksy Law Office is removed from the record as Ms. Sheikh’s legal representative.
Ms. Sheikh’s Application for Arbitration is dismissed.
State Farm is entitled to their expenses in the amount of $250.00.

EVIDENCE AND ANALYSIS:

Chronology

On December 31, 2013, the Financial Services Commission of Ontario received an Application for Arbitration filed on behalf of Ms. Sheikh.

A Pre-Hearing discussion was scheduled for January 6, 2015, at the offices of ADR Chambers. Ms. Victoria Gorbenko from Kanevsky Law Office attended for Ms. Sheikh. Ms. Karla Barrett participated on behalf of State Farm, as did their legal counsel, Ms. Antonietta Alfano. Ms. Sheikh did not attend. Ms. Gorbenko indicated that they have been unable to make contact with their client despite numerous telephone calls and letters and are considering making a request to be removed from the record. Ms. Antonietta Alfano requested that Ms. Sheikh’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. Sheikh, at both of her last known addresses, of the request by her counsel 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. She did not contact her counsel and she did not respond to our correspondence.

On February 20, 2015, Ms. Sheikh was notified of the Preliminary Issue Hearing, scheduled for March 25, 2015 at 1:00 p.m., by telephone, to consider the above noted issues. 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 23, 2015, I tried to follow up my correspondence with a telephone call but the number was no longer in service. She did not participate in the proceeding.

Decision

Ms. Sheikh has not participated in any of the Arbitration proceedings and has not contacted her counsel or our office as requested.

I am satisfied that there has been a breakdown in the solicitor client relationship and that the requirements of Rule 9.7 of the Dispute Resolution Practice Code (DRPC) have been met by Ms. Sheikh’s counsel. Kanevsky Law Office is therefore removed from the record.

Rule 68 of the (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. Sheikh 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. Sheikh 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. Sheikh’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 $250.00 in “throw away” costs in having to prepare for 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. Sheikh had prolonged and hindered the Arbitration proceedings.

May 13, 2015

Janet Davies Arbitrator

Date

ARBITRATION ORDER

Financial Services Commission of Ontario Neutral Citation: 2015 ONFSCDRS 104 FSCO A134-000100