REASONS FOR DECISION

Before: Arbitrator Harvey Savage Heard: In person at ADR Chambers on May 28, 2015

Appearances: No one attended for Ms. Chrystal Mckenzie Ms. Danielle Wilkinson attended for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Chrystal Mckenzie, was injured in a motor vehicle accident which occurred on January 31, 2011. She applied for and received statutory accident benefits 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. Mckenzie applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this Hearing is:

Should the Applicant’s Application for Arbitration be dismissed?

Result:

The Applicant’s Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion was held on February 18, 2015 before Arbitrator Francis Handy. At that time, the Arbitrator scheduled an Arbitration Hearing to take place on May 28, 2015, at the offices of ADR Chambers. The Applicant did not appear at that Pre-Hearing, and her then counsel, Mr. Marc Golding was removed from the record since he had attempted unsuccessfully, on numerous occasions, to contact the Applicant. Following the Pre-Hearing, the Applicant received written notice of the time and place of the Arbitration Hearing. This was done in a subsequent Pre-Hearing Letter by Arbitrator Jeffrey Shapiro.

The Arbitration Hearing proceeded as scheduled in the presence of Ms. Danielle Wilkinson, counsel for State Farm and Ms. Laura Ligda, Claims Representative for State Farm. After waiting thirty minutes for the Applicant to appear, Ms. Wilkinson brought a motion to dismiss the Applicant’s Application for Arbitration.

I am satisfied that the Applicant had been notified of all proceedings to date and was either aware that she was to attend the Arbitration Hearing or wilfully placed herself in a position of not being aware by failing to notify either ADR Chambers or any counsel, including her previous counsel, that her address had changed. I am also satisfied that the Applicant was aware that her failure to attend would result in State Farm bringing a motion to dismiss her Application for Arbitration. The Applicant has the onus of proof to establish her entitlement to accident benefits under her Application for Arbitration and her failure to attend means that she has failed to meet this onus.

Conclusion

Therefore, I find all of the above reasons are sufficient to dismiss the Application for Arbitration.

EXPENSES

Ms. Wilkinson has not requested expenses and therefore, no expenses are awarded.

June 25, 2015

Harvey Savage Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 135 FSCO A13-013086

BETWEEN:

CHRYSTAL MCKENZIE 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:

The Applicant’s Application for Arbitration is dismissed.