Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 230

FSCO A13-015426

BETWEEN:

JIRUSIYA RAAJMOHAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before:

Arbitrator Janet Davies

Heard:

By teleconference on September 10, 2015

Appearances:

Ms. Jirusiya Raajmohan did not participate

Ms. Neha Kohli participated for Ms. Jirusiya Raajmohan

Ms. Ashley Shmukler participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Raajmohan, was injured in a motor vehicle accident on November 13, 2009 and sought 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. Raajmohan, through her legal counsel, Eshel Law Firm Professional Corporation (“Eshel Law”) 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 Eshel Law be removed from the record as Ms. Raajmohan’s legal counsel?
Should Ms. Raajmohan’s Application for Arbitration be dismissed?
Is State Farm entitled to their expenses in preparing for the Arbitration proceeding?

Result:

Eshel Law is removed from the record as Ms. Raajmohan’s legal counsel.
Ms. Raajmohan’s Application for Arbitration is dismissed.
State Farm is entitled to expenses in the amount of $500.00 payable forthwith.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was scheduled to take place on March 18 2015, in which Ms. Raajmohan did not attend. The Pre-Hearing was rescheduled to May 25, 2015, and again Ms. Raajmohan did not attend. The matter was put over to September 10, 2015 to either proceed with the Pre-Hearing discussion or to consider Eshel Law’s request to be removed from the record and State Farm’s request to dismiss the Application for Arbitration on a with costs basis.

On May 25, 2015, a letter was sent to the parties, advising them of the September 10, 2015 date for the rescheduled Pre-Hearing discussion or if Ms. Raajmohan did not participate then to consider the above noted Motions, by telephone conference call.

As there had been no contact from Ms. Raajmohan as of September 9, 2015, I placed a telephone call to her and left a voicemail message to call me or her legal representative and again at the start of the Pre-Hearing/Motion on September 10, 2015. At the teleconference, Ms. Kohli, licenced paralegal, participated as did Ms. Shmukler on behalf of State Farm. Ms. Raajmohan did not participate.

Decision

In support of their Motion to be removed from the record, Eshel Law filed copies of several letters outlining their attempts to reach Ms. Raajmohan by both mail and telephone, in the English and Tamil languages, with no response from the Applicant.

I am satisfied that Eshel Law has done their due diligence in trying to reach their client to receive instructions without success. I am also satisfied the parties were given proper notice of Eshel Law’s intention to seek removal from the record in accordance with Rule 9.7 of the Dispute Resolution Practice Code (“the DRPC”). As a result, Eshel Law is removed from the record as Ms. Raajmohan’s legal counsel.

Rule 68 of the DRPC permits an Arbitrator to dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious or is commenced in bad faith providing written notice has been given to the parties of the intention to dismiss the proceedings.

I am satisfied that Ms. Raajmohan was given notice of the proceedings as required by Rule 68(2) of the DRPC at her last known address contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC.

I am satisfied that Ms. Raajmohan was given an opportunity to make submissions should she wish to object to the dismissal as required by Rule 68(3) of the DRPC.

I am also satisfied that there is no undue prejudice to Ms. Raajmohan in dismissing her Application for Arbitration. Therefore, Ms. Raajmohan’s Application for Arbitration is dismissed without a Hearing under Rule 68(1) of the DRPC on the basis that the application was frivolous, vexatious or was commenced in bad faith as she failed to participate in any of the Arbitration proceedings.

EXPENSES:

State Farm requested costs in having to prepare for the Pre-Hearings on the dates set out above. As Ms. Raajmohan has not participated in any of the Arbitration proceedings, I am awarding State Farm nominal expenses in “throw away” costs in having to prepare for the Arbitration proceedings. In doing so, I have considered Rules 75.2 and 78(1) of the DRPC, and award State Farm $500.00 by Ms. Raajmohan for unnecessarily prolonging the Arbitration process. The amount is payable forthwith.

November 4, 2015

Janet Davies

Arbitrator

Date