Neutral Citation: 2015 ONFSCDRS 115

FSCO A13-009788

BETWEEN:

EMAL AMIRI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: May 8, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ashley Shmukler for State Farm Mutual Automobile Insurance Company No one appearing on behalf of Mr. Amiri

The Applicant, Emal Amiri, claims that he was injured in a motor vehicle accident on January 12, 2011. 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 certain accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Amiri applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

Is the Applicant entitled to receive a non-earner benefit in the amount of $185.00 per week from July 12, 2011 through January 12, 2013?
Is the Applicant entitled to medical benefits as follows:

a. $1,278.00 for the cost of chiropractic treatment recommended by Trinity Health & Injury Rehab in a plan dated May 22, 2013?

b. $850.00 for the cost of chiropractic treatment recommended by Trinity Health & Injury Rehab in a plan dated February 25, 2013?

Note: these issues turn, in part, on whether the impairments sustained by the Applicant as a result of this accident were primarily a “minor injury” as that term is defined in the Schedule.
Is the Applicant entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is the Insurer liable to pay the Applicant’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Result:

The Applicant’s claims are dismissed.
The Applicant shall pay to the Insurer its expenses related to this proceeding, fixed in the amount of $1,500.00.

EVIDENCE AND ANALYSIS:

The Applicant commenced this arbitration proceeding by filing an application in August 2013. The Applicant then purported to add issues to this proceeding by way of a letter dated November 13, 2013.

A pre-hearing conference was scheduled to take place January 15, 2015 at the offices of the FSCO in Toronto. Mr. Amiri failed to attend that pre-hearing conference although notice was sent to him at his last known address. Mr. Lang, counsel for Mr. Amiri, attended the pre-hearing conference but was unable to reach Mr. Amiri by telephone.

The pre-hearing conference was resumed on April 17, 2015 at the offices of the FSCO. Mr. Amiri again failed to attend. A hearing was set for May 8, 2015.

On April 17, 2015, I sent a letter to the Applicant, at his last known address, to advise him that he must attend before me on May 8, 2015. I wrote:

… if the Applicant attends on May 8, 2015 and expresses an interest in pursuing his claims, the hearing may be converted to a pre-hearing discussion. If the Applicant fails to attend, the hearing may proceed in his absence and State Farm has indicated that it will be seeking an order dismissing this application and requiring Mr. Amiri to pay its legal expenses related to this proceeding.

On May 8, 2015, I heard a motion from Josh Lang, requesting an order permitting him and his firm to withdraw from this proceeding as the Applicant’s legal representatives. This motion was granted and Mr. Lang was permitted to withdraw from the proceeding.

I then proceeded with the hearing of the merits of the Applicant’s claims. Since no one appeared on behalf of the Applicant, there was no evidence tendered in support of his claims. Accordingly, the Applicant’s claims were dismissed.

EXPENSES:

Counsel for State Farm requested an order that the Applicant pay to the Insurer a reasonable amount for its expenses of this proceeding (i.e., legal expenses related to reviewing the accident benefits file and the Application for Arbitration, preparing a Reply, preparing for an attending at the pre-hearing conference in January 2015 and then attending at FSCO two additional times with respect to this matter). Ms. Shmukler, counsel for State Farm, did not prepare a Bill of Costs but advised that she had spent a total of about 25 hours on this matter. In all the circumstances of this case, I have decided to order the Applicant to pay to the Insurer its expenses, fixed in the amount of $1,500.00, inclusive of all fees, disbursements and any applicable taxes.

June 1, 2015

Richard Feldman Arbitrator

ARBITRATION ORDER