Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 146 FSCO A13-015407
BETWEEN:
DHANESH SINGH Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Arbitrator Thérèse Reilly Heard: By telephone conference on May 29, 2015
Appearances: Mr. Singh did not participate Ms. Neha Kohli participated for Mr. Dhanesh Singh Mr. Sebastian Schmoranz participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Mr. Dhanesh Singh, was injured in an automobile accident on August 15, 2009, and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) under the applicable Schedule.1 The parties were unable to resolve their disputes through mediation and Mr. Singh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1190, c. I.8, as amended.
The issues in this Preliminary Hearing are:
Should the Eshel Law Firm be removed as representative of record for Mr. Singh?
Should Mr. Singh’s Application for Arbitration be dismissed without costs?
Result:
The Eshel Law Firm is removed as representative of record for Mr. Singh.
Mr. Singh’s Application for Arbitration is dismissed without costs.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was held in person on April 8, 2015 at the offices of ADR Chambers. Ms. Kohli represented Mr. Singh. Mr. Sebastian Schmoranz represented State Farm. Mr. Singh did not attend the Pre-Hearing.
At the Pre-Hearing, Ms. Kohli brought a motion to be removed from the record under Rule 9.7 of the Dispute Resolution Practice Code (“the Code”) on the basis that they have been unable to communicate with the Applicant. The Eshel Law Firm sent a letter to the Applicant as early as August 2013, requesting that the Applicant contact their office. Despite their efforts, they have not been able to contact the Applicant. On March 31, 2015, Ms. Kohli sent a letter to the Applicant with a Motion Record providing notice that the Eshel Law Firm was seeking an Order to be removed as the representative of record. Further, the letter stated that the Eshel Law Firm would no longer be representing the Applicant and he was to obtain independent legal representation regarding his Arbitration.
Legal counsel for State Farm advised that they may be seeking a dismissal of the Application for Arbitration under Rule 68 of the Code.
I did not grant the motion to be removed from the record on April 8, 2015. To provide sufficient notice to the Applicant, the parties agreed to schedule a Preliminary Issue Hearing to address the motion on May 29, 2015 to be held by teleconference call at 9:00 a.m.
Following the Pre-Hearing on April 8, 2015, I sent a registered letter to the Applicant advising him of the Pre-Hearing discussion and that his representative had attended the Pre-Hearing and had brought a motion to be removed from the record. I also advised Mr. Singh in my April 8, 2015 letter that the Insurer may be seeking a dismissal of the Application for Arbitration and that my letter of April 8 would serve as notice that the Insurer was seeking to obtain a dismissal of the Application for Arbitration under Rules 68.1 and 68.2 of the Code.
I advised the Applicant further that a Preliminary Issue Hearing was scheduled for May 29, 2015 to be held by telephone conference at 9:00 a.m. and that his attendance was mandatory (with or without a representative). He was advised to contact our office by no later than May 15, 2015 to outline how he wished to proceed with his Application for Arbitration. I advised that if no response was received by May 15, 2015, I would assume that he did not have any interest in proceeding with the Application for Arbitration. Further, if he failed to attend the Preliminary Issue Hearing, his Application for Arbitration could be dismissed with or without costs under Rule 68 of the Code which permits an Arbitrator to dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious or is commenced in bad faith, providing that written notice has been given to the parties of the intention to dismiss the proceedings.
On May 26, 2015, the Insurer sent a letter to the Applicant advising that it was seeking a dismissal of the Application for Arbitration at the Preliminary Issue Hearing without costs. The Applicant was advised he could contact the Insurer if he had any questions.
Preliminary Issue Hearing
On May 29, 2015 at 9:00 a.m., the Preliminary Issue Hearing proceeded by telephone conference call. Both representatives attended. Mr. Singh did not participate and he did not contact me or any of the parties. Before the call, I also placed two telephone calls to the Applicant at the telephone number shown in the records of the Commission. I was not able to contact Mr. Singh.
All correspondence, including the Notices of Hearing, was sent to the address of Mr. Singh shown in the Commission records. I am satisfied that Mr. Singh had notice of the Preliminary Issue Hearing, scheduled for May 29, 2015. I am satisfied that all the notices provided complied with the requirements set out in Rule 9.1(c) and 9.7 of the Code and s. 7(1) of the Statutory Powers Procedures Act. Notwithstanding the notices and letters, the Applicant did not attend the Pre-Hearing and Preliminary Issue Hearing. Pursuant to Rule 37.9 of the Code, the Preliminary Issue Hearing proceeded in his absence.
Order for Removal from the Record
On the evidence presented, I accepted Ms. Kohli’s written and oral submissions that there had been a breakdown in the solicitor-client relationship between Mr. Singh and his representative as evidenced by their inability to communicate with the Applicant. The Insurer did not oppose the motion. I ordered the Eshel Law Firm be removed as representative for Mr. Singh.
Result
The Eshel Law Firm is removed as representative of record for Mr. Singh.
Order for Dismissal
At the Preliminary Issue Hearing, State Farm brought its motion to dismiss the Application for Arbitration on a without costs basis under Rule 68 based on the Applicant’s failure to remain in contact with his representative and participate in the proceedings. I am satisfied that Mr. Singh was provided ample opportunity to object to a dismissal of his Arbitration but he chose not to do so. Based on the failure to communicate with counsel and participate in the Arbitration process and on reliance on Rules 34, 68.1 and 68.2 of the Code, the Application for Arbitration is dismissed without costs.
Result
Mr. Singh’s Application for Arbitration is dismissed without costs.
EXPENSES:
The Insurer is not seeking costs.
July 8, 2015
Thérèse Reilly Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 146 FSCO A13-015407
BETWEEN:
DHANESH SINGH 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 Eshel Law Firm is removed as representative of record for Mr. Singh.
Mr. Singh’s Application for Arbitration is dismissed without costs.
July 8, 2015
Thérèse Reilly Arbitrator
Date
Footnotes
- Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''New Regulation'') came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the ''Old Regulation'') shall be paid under the New Regulation, but in amounts determined under the Old Regulation. As a result, both the Old Regulation and the New Regulation are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and both should be considered.