Gengatharan Sellathurai v. State Farm Mutual Automobile Insurance Company, 2015 ONFSCDRS 192

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 192

FSCO A13-003502

BETWEEN:

GENGATHARAN SELLATHURAI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Isoken Osunde

Heard: June 26, 2015, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Alexander Nterekas for Mr. Sellathurai

Glen Kruger for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Gengatharan Sellathurai, was injured in a motor vehicle accident on May 21, 2010. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ A dispute arose between the parties which there were unable to resolve through mediation, and Mr. Sellathurai 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 hearing are:

Should Mr. Sellathurai’s Application for Arbitration be dismissed?
Should Mr. Alexander Nterekas be removed from the record?
Is State Farm entitled to its expenses incurred in respect of the Arbitration?

Result:

Mr. Sellathurai’s Application for Arbitration is dismissed.
Mr. Alexander Nterekas is removed from the record.
State Farm is entitled to its expenses incurred in respect of the Arbitration fixed in the amount of $2,573.13.

EVIDENCE AND ANALYSIS:

For the reasons that follow, Mr. Sellathurai’s Application for Arbitration is dismissed and Mr. Nterekas is removed from the record as Mr. Sellathurai’s representative. At the pre-hearing discussion held before me on August 20, 2014, the parties advised me that they had reached a settlement of this matter. As such, I issued a letter confirming same and notifying the parties that the file would be closed within 20 days in accordance with Rule 69.2(b) of the Dispute Resolution Practice Code (the "Code").

On January 7, 2015, State Farm wrote a letter requesting a resumption of pre-hearing discussion in order to have Mr. Sellathurai’s Application for Arbitration dismissed on the basis that he failed to sign the settlement documents and had become unreachable by his counsel. I scheduled a resumption of pre-hearing discussion for May 1, 2015 and a Notice dated February 26, 2015 was sent to Mr. Sellathurai. Mr. Sellathurai did not attend at the resumption of pre-hearing discussion and Mr. Nterekas advised me of his intention to withdraw as Mr. Sellathurai’s representative on the basis of a breakdown in the solicitor-client relationship.

In Mr. Sellathurai’s absence, I scheduled a hearing, and the motion to withdraw to proceed at the same time in order to allow Mr. Nterekas to file the necessary motion materials in accordance with Rule 9 of the Code. Notices were sent to Mr. Sellathurai.

On June 26, 2015, the day of the hearing and motion, Mr. Sellathurai did not appear. I waited for 30 minutes, after which I allowed Mr. Nterekas's motion to proceed. State Farm did not oppose his motion to withdraw as Mr. Sellathurai’s representative. Having been satisfied that there had been a breakdown in solicitor-client relationship, I permitted Mr. Nterekas to be removed from the record in this arbitration.

With respect to his claims, Mr. Sellathurai bears the onus of proving entitlement to the benefits claimed. By not participating in his arbitration process and not presenting any evidence to support his claims, Mr. Sellathurai has failed to discharge this onus. Therefore, his Application for Arbitration is dismissed.

Expenses:

State Farm requested expenses in the amount of $2,573.13. By written submission received on June 16, 2015, it provided a breakdown of fees and disbursements.

In considering the number of hours, legal services and the permitted hourly rate that can be reasonably claimed with respect to this matter, I find the amount of $2,573.13 (inclusive of all costs, disbursements and taxes) reasonable for State Farm's expenses. Therefore, Mr. Sellathurai shall pay the sum of $2,573.13 (inclusive of all costs, disbursements and taxes) to State Farm for its expenses in this proceeding.

September 18, 2015

Isoken Osunde Date

Arbitrator