Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 228
FSCO A14-003774
BETWEEN:
VASANTHAMALAR VASEEHARAN
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator Chuck Matheson
Heard: By teleconference on August 24, 2015
Appearances:
No one appeared for Ms. Vasanthamalar Vaseeharan Mr. Josh R. Knox appeared for State Farm Mutual Automobile Insurance COMPANY
Issues:
The Applicant, Ms. Vasanthamalar Vaseeharan, was injured in a motor vehicle accident on October 31, 2011. She 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 through mediation, and Ms. Vaseeharan 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 Application for Arbitration be dismissed, forthwith?
Is Ms. Vaseeharan liable to pay the legal costs of State Farm?
Result:
The Application for Arbitration is dismissed, forthwith.
Ms. Vaseeharan shall pay the legal costs of State Farm in the amount of $500.00, forthwith.
EVIDENCE AND ANALYSIS:
Background
The Applicant’s law firm, known as Siganporia Law, was removed from the record during a motion brought by the firm as a result of a client-solicitor relationship breakdown, during a Pre-Hearing resumption held via teleconference on August 24, 2015. A Pre-Hearing letter was sent to the Applicant’s last known address, via registered letter, informing her of this outcome.
Decision
In a series of Pre-Hearings, in which the Ms. Vaseeharan did not appear despite various attempts via letter to her last known address by this commission and her then acting legal firm to attend, Insurer’s counsel brought this motion to dismiss.
Insurer’s counsel evidenced written letters from October 20, 2014 to May 21, 2015, asking for production of documents which would support her claim for the medical benefits being sought, without reply.
Further, counsel for the Applicant had urgently tried to contact the Applicant between June 15, 2015 and June 23, 2015 prior to the Pre-Hearing stage of the Application for Arbitration, in order to attain production documents and instructions on how to proceed with this application.
I am satisfied that the Applicant knew of the Pre-Hearing, the pending series of motions and the consequences thereof.
The Insurer argues, in part, that this Application for Arbitration should be dismissed as per the Dispute Resolution Practice Code which speaks to the dismissal of an Arbitration without a Hearing as follows:
Dismissal of proceeding without hearing 68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith. 68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1. 68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:
a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and (b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.
68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.
I am satisfied that the Applicant has not manifested any positive criterion that would demonstrate her interest in pursuing this Application for Arbitration, and as a result she has given proper grounds for dismissal in Rule 68.1.
Therefore, for the reasons given above, I now find and order that this application be dismissed, forthwith.
EXPENSES:
On August 24, 2015, I had a telephone conference with counsel for the Insurer to deal with the issue of expenses of this Arbitration. The Insurer argues in part, that Rule 75 of the Dispute Resolution Practice Code applies in this case and reads as follows:
Award of Expenses 75.1 An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2. The items and amounts which may be awarded are found in Rule 78 and the Schedule to the Expense Regulation found in Section F of the Code.
75.2 The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:
(a) each party's degree of success in the outcome of the proceeding;
(b) any written offers to settle made in accordance with Rule 76;
(c) whether novel issues are raised in the proceeding;
(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;
(e) whether any aspect of the proceeding was improper, vexatious or unnecessary. (f) whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996)