About-Faour v. State Farm Mutual Automobile Insurance Company, 2015 ONFSCDRS 226

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

Neutral Citation: 2015 ONFSCDRS 226

FSCO A12-004639

BETWEEN:

AREF ABOUT-FAOUR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Deborah Pressman

Heard: July 6, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Alyson Toms for Mr. About-Faour Be-Nazeer Damji for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. About-Faour, was involved in a motor vehicle accident on Feburary 2, 2009. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule. ¹ The parties were unable to resolve their disputes over two treatment plans and Mr. About-Faour applied for arbitration at the Financial Services Commission of Ontario.²

Mr. About-Faour’s arbitration file was initially combined with three other related files (A12-004640, A12- 004641, A12-004638). These files were settled on the eve of the hearing. Mr. About-Faour’s file did not settle and on the eve of the hearing he requested to withdraw his Application for Arbitration ("Application"). State Farm insisted that Mr. About-Faour pay its expenses in the amount of $9,000.00. Mr. About-Faour submits that I should permit his withdrawal without expenses.

The issues in this hearing are:

Pursuant to Rule 70.3 of the Dispute Resolution Practice Code, should Mr. About-Faour be permitted to withdraw his Application and if so, with or without expenses?

Result:

Mr. About-Faour is permitted to withdraw his Application and ordered to pay State Farm’s expenses in the amount of $1,500.00.

EVIDENCE AND ANALYSIS:

Generally, applicants are allowed a great deal of control in deciding whether to proceed with or withdraw claims. But withdrawal is not recognized as a right and the power to refuse or allow the withdrawal of an issue in dispute is found in an Arbitrator’s inherent power to control the arbitration process.

In this case, I see no sense in compelling the applicant to move forward with his Application, and I am permitting the withdrawal. However, I also find that the circumstances of Mr. About-Faour’s withdrawal warrant State Farm’s expenses.

Mr. About-Faour’s representative submits that costs should be minimal because the request to withdraw was conveyed before the start of the arbitration hearing and also due to Mr. About-Faour’s financial hardship. But no evidence was presented with respect to financial hardship and Mr. About-Faour was not in attendance.

Significantly, Mr. About-Faour’s request to withdraw his Application was made at a very late stage in the arbitration process and caused State Farm to incur expenses. Therefore, I agree with State Farm’s submission that its expenses are warranted.

With respect to quantum, State Farm requested $9,000.00 for its expenses. I was not provided with a cost outline or justification for this amount other than a client ledger and oral submissions.

I find that $1,500.00 is an appropriate and reasonable amount considering there were only two minor issues in dispute.

Pursuant to section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, I am fixing State Farm's expenses in this proceeding at $1,500.00 (inclusive of HST and disbursements).

October 30, 2015

Deborah Pressman Date

Arbitrator