Neutral Citation: 2015 ONFSCDRS 138 FSCO A13-014119

BETWEEN:

SHERIKAH KEEN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies

Heard: By telephone conference call on May 29, 2015

Appearances: Ms. Sherikah Keen did not participate Mr. Jack Burke-Gaffney, Student-at-Law, participated for Ms. Sherikah Keen Mr. Glen Krueger participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Sherikah Keen, was injured in a motor vehicle accident on December 21, 2010 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. Keen, 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 Motion are:

Should the law firm Mazo Chowbay Barristers and Solicitors ("Mazo Chowbay") be removed from the record as Ms. Keen's legal representative?
Should Ms. Keen's Application for Arbitration be dismissed?
Is State Farm entitled to their expenses in preparing for and attending the Arbitration proceedings from Ms. Keen, and if so, in what amount?

Result:

The law firm Mazo Chowbay Barristers and Solicitors is removed from the record as Ms. Keen's legal representative.
Ms. Keen's Application for Arbitration is dismissed.
State Farm is entitled to their expenses in the amount of $500.00, payable forthwith.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was scheduled for February 10, 2015, at which Ms. Keen failed to appear. Mr. Serikov, on behalf of Mazo Chowbay, requested an adjournment to allow them more time to contact their client for instructions. The matter was rescheduled to May 29, 2015 at 11:00 a.m. by telephone.

On April 10, 2015, I received a motion from Mazo Chowbay to be removed from the record as Ms. Keen's legal representative as they had been unable to reach her to receive instructions.

On April 21, 2015, I sent a letter to Ms. Keen at her last known address to advise her of the missed Pre-Hearing discussion and of the motion from her counsel to be removed from the record and that State Farm requested that her Application for Arbitration be dismissed with their expenses in preparing for the Arbitration proceedings.

The letter provided Ms. Keen with an Attendance Notice, setting a date of May 29, 2015 at 11:00 a.m., to hear the above issues in dispute, and information regarding the proceedings, recovery of legal expenses, and the adjournment policy. The letter also advised her that should she not contact our office or participate in any further proceedings, I would dismiss her application and consider State Farm's request for expenses.

The Motion

As of May 29, 2015, I was unable to contact Ms. Keen. She had yet to contact her legal representative or ADR Chambers as requested and had not participated in any of the Arbitration proceedings. I have therefore, granted Mazo Chowbay's request to be removed from the record.

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. Keen was given notice of the proceedings 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. Keen was given the opportunity to make submissions should she wish to object to the dismissal as required by Rule 68(3) of the DRPC.

I am also satisfied that there is no prejudice to Ms. Keen in dismissing her Application for Arbitration. Therefore, Ms. Keen'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 awarded expenses in the amount to $500.00 in having to prepare for and participate in the Arbitration proceedings. The amount is payable forthwith. In making this award, I have considered Rules 75.2 and 78(1) of the DRPC and found that Ms. Keen had prolonged and hindered the Arbitration process.

June 29, 2015

Janet Davies Arbitrator

Date

Financial Services Commission of Ontario