Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 180
FSCO A14-002901
BETWEEN:
VIMALATHEVY ANANTHARAJAH
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Thérèse Reilly
Heard: By telephone conference call on June 12, 2015
Appearances: Ms. Vimalathevy Anantharajah participated
Mr. Michael Courneyea participated for Ms. Vimalathevy Anantharajah
Ms. Leng Low participated for State Farm Mutual Automobile Insurance COMPANY
Issues:
The Applicant, Ms. Anantharajah, was injured in an automobile accident on December 3, 2009,
and sought accident benefits from State Farm under the applicable accident benefit Schedules.1
The parties were unable to resolve their disputes through mediation and Ms. Anantharajah
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 David Levy Law Office be removed as representative of record for Ms. Anantharajah?
Should Ms. Anantharajah’s Application for Arbitration be dismissed with or without costs?
Result:
The David Levy Law Office is removed as representative of record for Ms. Anantharajah.
Ms. Anantharajah’s Application for Arbitration is dismissed without costs.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was held in person on March 18, 2015 at the offices of ADR Chambers. Mr. Courneyea represented Ms. Anantharajah. Ms. Leng Low represented State Farm. Ms. Anantharajah participated as did Mr. Paul Gardner on behalf of the Insurer. Guna Ponnampalam provided Tamil interpretation services. At the Pre-Hearing, the Applicant’s representative advised they may seek to be removed from the record, and the representative for the Insurer stated they may seek a Hearing for a preliminary issue. To address these requests and enable counsel to obtain instructions, a resumption of the Pre-Hearing was scheduled to be held by telephone conference at 10:00 a.m. on April 24, 2015.
Following the March 18, 2015 Pre-Hearing, Mr. David J. Levy sent a letter, dated April 6, 2015, by registered mail, advising the Applicant that due to a material breakdown in the lawyer client relationship, they were terminating their retainer with the Applicant and that a telephone resumption of the Pre-Hearing was scheduled for April 24, 2015.
The resumption of the Pre-Hearing discussion proceeded on April 24, 2015 at 10:00 a.m., by telephone. The Applicant attended as did the Tamil interpreter, Guna Ponnampalam, who provided Tamil interpretation services. Mr. Courneyea attended as did Ms. Low.
At the resumption on April 24, 2015, Mr. Courneyea brought a motion to be removed from the record under Rule 9.7 of the Dispute Resolution Practice Code (“the Code”) on basis that they have been unable to communicate with the Applicant. Counsel referred to his letter of April 6, 2015. The Applicant did not acknowledge receiving this letter. Counsel agreed to send a further letter of notice to the Applicant under Rule 9.7. Ms. Low advised she did not oppose or consent to the request to be removed from the record. The parties agreed to schedule another resumption of the Pre-Hearing for June 12, 2015 at 2:00 p.m. to address the request.
Mr. Levy, by registered letter, dated May 8, 2015, advised the Applicant that due to a material breakdown in the lawyer client relationship they were terminating the retainer with her and would no longer represent her in this matter. The Applicant was advised that another resumption had been scheduled for Friday June 12, 2015 and she was advised to obtain independent legal advice.
Notice by the Insurer
By letter, dated May 1, 2015, the Insurer advised the Applicant that at the June 12, 2015 resumption, the Insurer would be seeking a dismissal of the Applicant’s Application for Arbitration with costs payable to the Insurer. By letter, dated June 8, 2015, the Insurer further advised the Applicant that at the June 12, 2015 resumption, if the Applicant had not obtained representation, the Insurer would seek a dismissal of the Applicant’s Application for Arbitration.
My letter to the Applicant
Following the Pre-Hearing on April 24, 2015, I sent a registered letter to the Applicant, dated May 12, 2015, advising that her representative was bringing a motion to be removed from the record and the Insurer would be seeking a dismissal of the Application for Arbitration under Rule 68 of the Code.
I confirmed the resumption to address the requests was scheduled for June 12, 2015 to be held by telephone conference at 2:00 p.m. and her attendance was mandatory (with or without a representative). The Applicant was advised to contact me by no later than June 12, 2015 at 12:00 p.m. to outline how she wished to proceed with his Application for Arbitration. If no response was received by June 12, 2015, I would assume that she did not have any interest in proceeding with the Application for Arbitration. Further, if she failed to attend, her 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 written notice has been given to the parties of the intention to dismiss the proceedings. Prior to the June 12, 2015 resumption of the Pre-Hearing, I did not receive any notice from the Applicant that she wished to attend the resumption or obtain new representation.
Request to be Removed from the Record
On June 12, 2015 at 2:00 p.m., the resumption of Pre-Hearing proceeded by telephone conference call. Counsel for the Applicant brought the motion to be removed from the record. Based on the evidence presented, I was satisfied that notice had been provided under Rule 9.7 of the Code. I ordered that counsel be removed from the record.
Result:
The David Levy Law Office is removed as representative of record for Ms. Anantharajah.
Order for Dismissal
I was also advised by Applicant’s counsel that just prior to the resumption, he had received a telephone call from someone who identified himself as the Applicant’s spouse who advised him that the Applicant wished to participate on the call. Following the issuance of my Order for removal, Mr. Courneyea disconnected from the call. I then placed a call to the Applicant. No interpreter was present however, as no request had been made for one and the Applicant had not advised me that she was going to participate. As the Applicant required an interpreter, I placed the call on hold and took steps to have a Tamil interpreter join the call. A Tamil interpreter was made available for the call. The call then continued with Insurer’s counsel, the Applicant and Thaya Anthonipillai, a Tamil interpreter who provided Tamil interpretation services.
I advised the Applicant that her representative had been removed from the record and was no longer on the call. She acknowledged receiving my letter of May 12, 2015 and many other letters. I asked the Applicant how she wished to proceed with her Application for Arbitration. She confirmed that she did not want to obtain representation and wanted to cancel the Arbitration. She was asked if she objected to the dismissal of her Application and she stated no.
The Insurer then brought a motion for a dismissal of the Application for Arbitration under Rule 68 of the Code. The Insurer confirmed they would not seek a dismissal with costs.
I am satisfied that all correspondence, including the Notices of Hearing was sent to the address of the Applicant as shown in the Commission Records. I am satisfied that the Applicant had notice of the motion and the proceedings and 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. I am satisfied the Applicant had ample notice and opportunity to obtain representation and chose to not do so.
In reliance on the notices provided, failure to communicate with her representative, and the Applicant’s instructions to cancel the Arbitration, and in reliance on Rules 68.1 and 68.2 of the Code, the Application for Arbitration is dismissed without costs.
Result:
Ms. Anantharajah’s Application for Arbitration is dismissed without costs.
EXPENSES:
The Insurer is not seeking costs.
September 2, 2015
Thérèse Reilly
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 180
FSCO A14-002901
BETWEEN:
VIMALATHEVY ANANTHARAJAH
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 David Levy Law Office is removed as representative of record for Ms. Anantharajah.
Ms. Anantharajah’s Application for Arbitration is dismissed without costs.
September 2, 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.