Mayra Campos v. State Farm Mutual Automobile Insurance Company, 2015 ONFSCDRS 178

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 178

FSCO A14-001259

BETWEEN:

MAYRA CAMPOS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Chuck Matheson

Heard: By teleconference on June 12, 2015

Appearances: Ms. Mayra Campos did not attend

Ms. Sarah Jones attended for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Mayra Campos, was injured in a motor vehicle accident on February 8, 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 Ms. Campos 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 Applicant’s Application for Arbitration be dismissed?
Is Ms. Campos liable for State Farm`s legal expenses of this Arbitration?

Result:

The Applicant’s Application for Arbitration is dismissed.
Ms. Campos shall pay the Insurer $1,100.00 (HST included) for legal costs, forthwith.

EVIDENCE AND ANALYSIS:

The last Arbitration Pre-Hearing discussion was held on April 23, 2015 before me. At that time, Applicant’s counsel had admitted they had lost contact with their client for several months, which resulted with the request for their firm to be removed from the record. Various attempts over several months were made to communicate with the Applicant. These attempts were part of the evidence presented at this Pre-Hearing.

Counsel for the Insurer had no objection to the Applicant’s counsel being removed from the file, but added that I should take an adverse inference from the Applicant’s actions.

The last Pre-Hearing Letter, which again was sent to Applicant’s residence, told her that she was now self-represented and had options to pursue. She was instructed to contact State Farm or ADR Chambers in order to tell the Insurer what her intentions were regarding this application for benefits.

Clearly, as this deadline had passed without hearing from the Applicant or new counsel, I must conclude that that the Applicant has not manifested any positive actions to support her claim.

I am satisfied that all appropriate steps and efforts were taken to notify the Applicant, thus the Applicant was aware of her obligations. After listening to all of the Insurer’s counsel’s evidence, I am also satisfied that the Applicant was aware that her failure to attend would result in State Farm bringing an application to dismiss the 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 accordingly means that she has failed to meet this onus.

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 Ms. Campos was given notice of the Pre-Hearing as required by Rule 68(2) of the DRPC at her last known address(s) contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC.

I am satisfied that Ms. Campos was given an opportunity to make submissions should she wish to object to the dismissal as required by Rule 68(3) of the DRPC. As Ms. Campos did not participate, her 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 proceeding.

In regards to costs, the Insurer has requested $1,100.00 (HST included) in legal costs pursuant to Rule 75 of the DRPC.

After reviewing the costs submitted by the Insurer, I grant the expenses, and therefore, now find and order the Applicant pay $1,100.00 to the Insurer, forthwith.

Conclusion

Therefore, I find that the above reasons are sufficient to dismiss the Application for Arbitration, with costs of $1,100.00 (HST included), to the Insurer, forthwith.

EXPENSES:

Costs, in the amount of $1,100.00 (HST included), are awarded to the Insurer.

September 1, 2015

Chuck Matheson

Arbitrator

Date