Pathmarajah v. State Farm Mutual Automobile Insurance Company, 2015 ONFSCDRS 211

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 211

FSCO A13-009620

BETWEEN:

NIROSHAN PATHMARAJAH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: September 4, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Pathmarajah

Carl Vondercrone appearing for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Niroshan Pathmarajah, claims to have been injured in a motor vehicle accident on March 7, 2010. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose concerning the Applicant’s entitlement to certain accident benefits and the parties were unable to resolve their disputes through mediation. Mr. Pathmarajah then applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is the Applicant entitled to income replacement benefits in the amount of $400.00 per week from June 20, 2012 onwards?
Is the Applicant entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from March 7, 2012 onwards?
Is the Applicant entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
Is the Insurer liable to pay the expenses of the Applicant in respect of the arbitration under s. 282(11) of the Insurance Act?
Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration under s. 282(11) of the Insurance Act?

Result:

This application is dismissed.
The Applicant shall pay to the Insurer its expenses in respect of the arbitration proceeding, fixed in the amount of $750.00.

ANALYSIS:

The pre-hearing conference was scheduled to take place on March 5, 2015 by teleconference call arranged by FSCO. Arbitrator Robinson presided. The Applicant failed to participate in the pre-hearing conference and the Applicant’s lawyer requested that he be permitted to withdraw from the proceeding (that is, he no longer wished to represent the Applicant and sought permission to remove himself from the record). That request was granted.

Arbitrator Robinson then scheduled a hearing of the issues identified in the Application for Arbitration. That hearing was set for May 22, 2015 at FSCO’s offices in Toronto. In his letter of March 5, 2015, Arbitrator Robinson warned the Applicant that if he failed to attend the hearing on May 22, 2015, the Insurer could seek an order dismissing the Application and ordering the Applicant to pay the Insurer’s legal expenses.

The hearing came before me on May 22, 2015. The Applicant failed to communicate with FSCO or with the Insurer and failed to attend the hearing. I was concerned, however, that the Applicant might not have received notice of the hearing as the mailing address on the notice was incomplete and there were other addresses for the Applicant known to FSCO. No attempt had been made to contact the Applicant at those alternate addresses. I adjourned the hearing to 10:00 a.m. on September 4, 2015 and had notice of the new hearing mailed to the Applicant at all of his known addresses. In my letter to the Applicant (dated May 22, 2015), I advised him that he must attend before on September 4, 2015 and that, should he fail to do so, the case would likely be dismissed and the Insurer could request an order that he pay its legal expenses.

The hearing reconvened before me at 10:00 a.m. on September 4, 2015 at the offices of the Financial Services Commission of Ontario. Mr. Carl Vondercrone, legal counsel appeared on behalf of State Farm. Ms. Leanne Stultz participated on behalf of State Farm. No one appeared on behalf of the Applicant, although we waited approximately thirty minutes. No communication from the Applicant has been received by FSCO. Mr. Vondercrone and Ms. Stultz advised that they also had received no communications from the Applicant.

The Applicant has adduced no evidence in support of his application and he has utterly failed to participate in this arbitration proceeding. The Insurer requested that this application be dismissed and that it be awarded its “costs thrown away” in the amount of $750.00. In the circumstances, I find the Insurer’s requests to be reasonable and shall grant the requested orders.

October 19, 2015

Richard Feldman

Arbitrator

Date