Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2015 ONFSCDRS 19

FSCO A13-006132

BETWEEN:

ANTONITTA LOGANATHAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before: Alan Mervin

Heard: By telephone conference call on December 23, 2014.

Appearances: Prisanthy Paramsothy for Ms. Loganathan Jennifer Arduini for State Farm Mutual Automobile Insurance Company

Background and Issues:

The Applicant, Antonitta Loganathan, was injured in a motor vehicle accident on December 10, 2010. She applied for and received statutory accident benefits from the Insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes with respect to benefits through mediation, and Ms. Loganathan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Law Offices of Meleni David (hereinafter, “LOMD”), Ms. Loganathan’s legal representatives, have been unable to contact the Applicant for some time and have now brought a motion under Rule 9.7 of the Dispute Resolution Practice Code (hereinafter, "DRPC") , heard at the resumed pre-hearing, requesting that an order issue to remove LOMD as legal representatives of record for the Applicant.

The Insurer has also requested an expedited production order as agreements at the pre-hearing to produce documents had not been complied with.

The issues in this motion are:

1. Should LOMD be permitted to withdraw as the legal representatives for Antonitta Loganathan in this proceeding?

2. Should a production order be made against the Applicant requiring her to produce all documents listed in Schedule C of the Insurer’s Response to the Application for Arbitration?

Result:

1. LOMD are removed as legal representatives of record for the Applicant Antonitta Logananthan.

2. The Applicant shall produce or make best efforts to produce all documents listed in Schedule C of the Insurer’s Response to the Application for Arbitration.

EVIDENCE AND ANALYSIS:

The initial pre-hearing discussion took place on March 25, 2014. Ms. Loganathan did not attend the pre-hearing, and dates for the arbitration hearing, March 10-13, 2015, were set at that time.

No explanation was given for the Applicant’s non-attendance at that time. With respect to production of documents, the parties agreed that they would co-operate with each other to produce the documents in a timely fashion, and no disputes were raised over any of the documents requested by either party.

WITHDRAWAL OF APPLICANT'S LEGAL REPRESENTATIVES UNDER RULE 9.7 AND 9.8:

On September 2, 2014, Ms. Arduini, counsel for the Insurer, wrote to FSCO requesting a resumption of pre-hearing. That letter advised that despite many requests to the Applicant since the pre-hearing, no productions had been forthcoming.

On September 4, 2014, I wrote to the Applicant requesting that the parties attempt to work out productions themselves and that should a pre-hearing still be required to resolve production issues, that each party set out in writing the productions requested and the position taken with respect to each request in writing.

On September 19, 2014, the Insurer wrote again requesting a resumption of pre-hearing to obtain a production order as no productions had been received. The Insurer enclosed a copy of the Schedule C containing a list of production requests. The Insurer advised that it had contacted the Applicant's legal representatives and was advised that they were unable to contact their client, and would be withdrawing as the Applicant's legal representatives.

On September 22, 2014, I received a letter from the Applicant’s legal representatives, copied to Ms. Arduini, advising that they been unable to contact their client, that they had notified the client of same, and that, in their opinion, they had fulfilled the requirements of Rule 9.7 of the DRPC and so would no longer be participating in the proceedings.

On September 25, 2014, I again wrote to the Applicant's legal representatives, advising that the Applicant had not fully complied with Rule 9.7, as that rule required consent of the Arbitrator to withdraw. As no written consent to the withdrawal from Ms. Loganathan had been obtained, a motion would be necessary to obtain an order for the withdrawal of the legal representative.

I advised that a resumption of pre-hearing would be held in order to hear the motion for removal of the Applicant's legal representatives, and deal with outstanding production issues.

A resumption of pre-hearing by teleconference was set for January 23, 2015, and notice of the resumption was sent to all parties.

The motion record filed by the Applicant's legal representatives requested an order removing LOMD as legal representative on the basis of a breakdown in communications, as the firm had been unable to contact their client since the pre-hearing or receive instructions.

The motion to withdraw from the record had been served on the Applicant at her last known address, and filed with FSCO. The attached sworn affidavit of Dushanthini Balasubramaniam, Legal Assistant at LOMD, explained the circumstances, and cited an inability to contact the Applicant since the prehearing in March 2014.

That Affidavit listed numerous attempts to contact the Applicant by telephone between April 12, 2014 and January 15, 2015, and contained as exhibits, several letters sent to the Applicant during this time period requesting the Applicant contact the firm, all without any response.

At the resumed pre-hearing on January 23, 2015, Ms. Paramsothy, student at law at LOMD, orally confirmed that the firm had lost contact with the Applicant, did not know her whereabouts, and had been unable to obtain instructions. The Applicant herself did not participate.

Under the circumstances, the Insurer did not object to the request to remove LOMD from the record.

I am satisfied that the Applicant was properly served with this motion in accordance with the Rules, and am satisfied that there has been a breakdown of communications between the Applicant and her legal representatives.

LOMD are removed as legal representatives of record for the Applicant Antonetta Loganathan.

Ms. Paramsothy then left the teleconference, and the pre-hearing continued in the absence of the now unrepresented Applicant.

ORDER FOR PRODUCTIONS:

Ms. Arduini then requested I exercise my discretion pursuant to Rule 68 of the DPRC and dismiss the arbitration at the prehearing pursuant to Rule 68 on the basis that the proceeding was frivolous, vexatious, or commenced in bad faith.

A date for the arbitration hearing had already been set and notice sent to the Applicant at her last known address. The only facts on which I could base such a finding were the Applicant’s unexplained lack of contact with counsel and her non-attendance at the pre-hearing; in my view, this was insufficient to dismiss at this time and I was not prepared to make that order.

Ms. Arduini then requested a production order, advising that, there had been no productions to date of the items listed in Schedule C of the Response to the Application for Arbitration since requested and agreed to at the pre-hearing in March 2014. I reviewed the list of productions in the schedule, found them to be reasonable and relevant, and ordered production of those documents.

The documents to be produced are:

1. Complete records of Scarborough Physio and Rehab Centre;

2. Complete records of Rapid Interactive Disability Management Ltd.;

3. Police Report, if any;

4. Clinical notes and records of the Applicant’s family physician for the period covering two years pre-accident to date;

5. Complete clinical notes and records of any hospitals the Applicant attended following the subject motor vehicle accident;

6. Decoded Ontario Health Insurance Plan ("OHIP") Summary from two years pre-accident to date;

7. Complete prescription summary of any pharmacies frequented by the Applicant for the period covering two years pre-accident to date and ongoing; and

8. Particulars of any outstanding and incurred accounts.

As the hearing date is rapidly approaching, I granted the request of the Insurer to order expedited production of the requested documents or proof of best efforts to obtain them; the productions shall be made no later than February 13, 2015.

EXPENSES:

Neither party spoke to the issue of expenses regarding the motion to withdraw.

The Insurer requested expenses of the pre-hearing with respect to the production issues.

The question of entitlement to expenses of this pre-hearing proceeding is remitted to the hearing arbitrator.

January 30, 2015

Alan Mervin Arbitrator

Date

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2015 ONFSCDRS 19

FSCO A13-006132

BETWEEN:

ANTONITTA LOGANATHAN

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:

1. The Applicant shall produce or provide proof of best efforts to obtain the following documents, contained in Schedule C of the Insurer’s Response to the Application for Arbitration, on or before February 13, 2015;

a. Complete records of Scarborough Physio and Rehab Centre;

b. Complete records of Rapid Interactive Disability Management Ltd.;

c. Police Report, if any;

d. Clinical notes and records of the Applicant’s family physician for the period covering two years pre-accident to date;

e. Complete clinical notes and records of any hospitals the Applicant attended following the subject motor vehicle accident;

f. Decoded OHIP Summary from two years pre-accident to date;

g. Complete prescription summary of any pharmacies frequented by the Applicant for the period covering two years pre-accident to date and ongoing; and

h. Particulars of any outstanding and incurred accounts.

2. The question of entitlement to expenses of this pre-hearing proceeding is remitted to the hearing arbitrator.

January 30, 2015

Alan Mervin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.