Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 177

FSCO A14-000470

BETWEEN:

MINH NGUYEN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Jeffrey Shapiro

Heard: In person on May 8, 2015 and by written submissions due June 8, 2015

Appearances: Mr. Minh Nguyen did not participate

Ms. Jenna Meth participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Minh Nguyen, was injured in a motor vehicle accident on January 27, 2012 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 Mr. Nguyen, through his 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 Mr. Nguyen’s Application for Arbitration be dismissed?
Is State Farm entitled to their expenses from Mr. Minh Nguyen in preparing for and attending the Arbitration proceedings and if so, in what amount?

Result:

Mr. Nguyen’s Application for Arbitration is dismissed.
State Farm is entitled to their expenses from in the amount of $750.00, payable forthwith.

EVIDENCE AND ANALYSIS:

Chronology

On January 20, 2015, at 12:00 p.m., a Pre-Hearing discussion was held by telephone conference call arranged by ADR Chambers. Mr. Nguyen failed to appear. Mr. Brent Vickar, legal counsel, represented Mr. Nguyen. Mr. Vickar indicated that he had lost contact with the Applicant, and would be moving to withdraw as counsel of record. On the consent of the parties, a resumption of this proceeding was set for May 8, 2015, at 9:00 a.m., in person, at the offices of ADR Chambers. That same day of the Pre-Hearing, I issued a Pre-Hearing Letter, advising that Mr. Nguyen’s attendance at the resumption was peremptory (i.e. mandatory), and that if he failed to appear, his claim may be dismissed in its entirety, with costs.

On April 6, 2015, Mr. Vickar and his law firm moved to withdraw as counsel of record, and duly served Mr. Nguyen. The motion was filed with ADR Chambers on April 10, 2015.

On April 23, 2015, via letter, State Farm moved to dismiss the Application for Arbitration.

On May 8, 2015, at 9:00 a.m., the resumption of the Pre-Hearing discussion was held at the offices of the ADR Chambers. Mr. Nguyen again failed to appear. Mr. Vickar was present in support of his Motion to Withdraw. As set-forth in his Affidavit, Mr. Vickar confirmed that he lost contact with his client shortly after the Application was filed back in January 2014, and his numerous attempts to re-establish contact at the Applicant’s last known address, and two phone numbers, were not successful. Accordingly, I granted the Motion to Withdraw.

Ms. Meth, in turn, orally renewed State Farm’s Motion to Dismiss the Application for Arbitration. In support of its Motion to Dismiss, Ms. Jodi Wilkens, the adjuster for State Farm, represented that State Farm’s last contact with Mr. Nguyen was at an Insurer’s Examination in August of 2012, and advised that recently, a February 13, 2015 mailing to the Applicant was returned. I attempted to call Mr. Nguyen at the telephone number provided by Mr. Vickar, but the answering machine provided a different name. State Farm provided two additional telephone numbers, which I attempted to call, but which appeared out of service. State Farm also provided the last known address it had on file for Mr. Nguyen.

Ms. Meth represented that State Farms’ legal fees to date are over $3,000.00, in addition to the $3,000.00 filing fee. State Farm requested its costs up to those amounts, but did not submit a bill of costs, and left the amount of an award to my discretion.

While there were grounds to dismiss at the resumption of the Pre-Hearing, I opted to give Mr. Nguyen until June 8, 2015 to respond to the Motion to Dismiss. In that regard, on May 8, 2015 – the day of the resumption, I issued an additional Pre-Hearing Letter, and had it served via Registered Mail on the Applicant at his two last known addresses. The letter cited Dispute Resolution Practice Code Rule 68, and stated that if Mr. Nguyen did not respond by June 8, 2015, his Application for Arbitration would be dismissed, and costs would be issued against him.

As of June 8, 2015, Mr. Nguyen had not responded. Other than Mr. Vickar’s last contact in January 2014, I have no evidence or indication of any type before me that Mr. Nguyen intends to pursue his claim.

The Motion

Rule 68 of the Dispute Resolution Practice Code (“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 Mr. Nguyen was given notice of the proceedings as required by Rule 68 (2) of the DRPC at his 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 Mr. Nguyen was given opportunity to make submissions should he wish to object to the dismissal as required by Rule 68(3) of the DRPC.

I am also satisfied that there is no undue prejudice to Mr. Nguyen in dismissing his Application for Arbitration. Therefore, Mr. Nguyen’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 he failed to participate in the proceedings.

EXPENSES:

State Farm is awarded expenses in the amount to $750.00 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 Mr. Nguyen had prolonged and hindered the Arbitration process.

September 1, 2015

Jeffrey Shapiro

Arbitrator

Date