Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 235
FSCO A14-009374
BETWEEN:
CHENELL SIMPSON
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator Thérèse Reilly
Heard: By telephone conference call on August 31, 2015
Appearances: Mr. Bobby Vujicic participated for Ms. Chenell Simpson
Ms. Emma Katz participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Ms. Simpson, was injured in an automobile accident on November 29, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) payable under the applicable accident benefit Schedule.1 The parties were unable to resolve their disputes through mediation and Ms. Simpson 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 Tzaferis Personal Injury Lawyers be removed as representative of record for Ms. Simpson?
Should Ms. Simpson’s Application for Arbitration be dismissed with or without costs?
Result:
The Tzaferis Personal Injury Lawyers is removed as representative of record for Ms. Simpson.
Ms. Simpson Application for Arbitration is dismissed with costs. Ms. Simpson is to pay State Farm’s expenses in the amount of $1,000.00 (inclusive of all costs, disbursements and taxes).
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion was scheduled to be heard at 3:00 p.m. on May 7, 2015. The Applicant failed to attend the Pre-Hearing discussion on that day. Mr. Bobby Vujicic represented the Applicant. Mr. Ben Flanagan represented State Farm. At the Pre-Hearing discussion, the parties agreed to schedule a Pre-Hearing Resumption for July 6, 2015 at 12:00 p.m.
Following the Pre-Hearing, I sent a letter to the Applicant, dated May 11, 2015, advising the Applicant that a Pre-Hearing Resumption was scheduled for July 6, 2015 and that her attendance was peremptory. In the letter, I also advised that her representative would be bringing a Motion to be removed from the record and the Insurer would be seeking a dismissal of the Application for Arbitration under Rule 68 of the Dispute Resolution Practice Code (“the Code”).
On June 11, 2015, Mr. Vujicic served and filed a Motion to be removed from the record as the representative for the Applicant on the basis that there has been a material breakdown in the solicitor-client relationship.
The Resumption of the Pre-Hearing discussion proceeded on July 6, 2015 at 12:00 p.m., by teleconference call arranged by ADR Chambers. The Applicant did not attend. At the Pre-Hearing Resumption, the representative for the Applicant advised they are seeking an Order removing their firm from the record. The Insurer also confirmed they would be seeking an Order dismissing this application with costs pursuant to section 68 of the Code.
To address the request to be removed from the record and the request for a dismissal of the Application for Arbitration, I notified the parties that a Motion by way of a resumption was to be held by telephone at 2:00 p.m. on August 31, 2015. By letter to the Applicant, dated July 8, 2015, and sent via registered mail, the Applicant was advised to contact me no later than August 31, 2015 at 2:00 p.m. to outline how she wished to proceed with his Application for Arbitration. If no response was received by August 31, 2015, I would assume that she did not have any interest in proceeding with the Application for Arbitration. Further, if she failed to attend, her Application for Arbitration could be dismissed with or without costs under Rule 68 of the Code, which 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.
By letter, dated July 15, 2015, the Insurer served and filed Motion materials seeking an Order for a dismissal of the Application for Arbitration with costs in reliance on Rules 9, 33, 67, 68 and 75 of the Code.
Request to be Removed from the Record
I did not receive any notice from the Applicant, prior to the August 31, 2015 proceeding, that she wished to attend the resumption or obtain new representation.
Immediately before the August 31, 2015 telephone conference, I placed a call to the Applicant at the telephone number reflected in the records of ADR Chambers and no one answered the call.
On August 31, 2015 at 2:00 p.m., the Motion proceeded by telephone conference call. Mr. Vujicic participated as did Ms. Katz. The representative for the Applicant brought his Motion to be removed from the record. Based on the evidence presented, I am satisfied that notice had been provided under Rule 9.7 of the Code and that there has been a material breakdown in the solicitor client relationship. I ordered that the representative be removed from the record.
Result:
Tzaferis Personal Injury Lawyers is removed as representative of record for Ms. Simpson.
Order for Dismissal
The Insurer then brought a Motion for a dismissal of the Application for Arbitration under Rule 68 of the Code with costs.
I am satisfied that all correspondence, including the Notices of Hearing, was sent to the address of the Applicant as shown in the Commission Records. I am satisfied that the Applicant had notice of the Motion and the proceedings and that all the notices provided complied with the requirements set out in Rule 9.1(c) and 9.7 of the Code and s. 7(1) of the Statutory Powers Procedures Act. I am satisfied the Applicant had ample notice and opportunity to obtain representation and chose to not do so.
In reliance on the notices provided and failure of the Applicant to communicate with her representative, and in reliance on Rules 68.1 and 68.2 of the Code, the Application for Arbitration is dismissed with costs.
Result:
Ms. Simpson’s Application for Arbitration is dismissed.
EXPENSES:
I find that State Farm, as the “successful party” within the meaning of subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664, is entitled to its expenses.
State Farm provided a Bill of Costs in the total amount of $2,291.93, for fees and disbursements.
I do not believe, however, that this matter warrants a line by line examination of the Insurer’s expenses. The general approach with respect to fees is to take a pragmatic, broad-strokes approach, with a view to fixing an amount that is reasonable. I note that Ms. Simpson’s failure to participate in the Pre-Hearing process has caused delay and an unnecessary expense to the Insurer.
I therefore fix the Insurer’s expenses at $1,000.00 including disbursements and all applicable taxes. I find this amount to be reasonable given the time required to review the file, obtain instructions, prepare and file a response, and prepare for and attend the Pre-Hearing discussions and the Motion by telephone.
Accordingly, and pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.1.8, as amended, Ms. Simpson is ordered to pay State Farm’s expenses in the amount of $1,000.00 (inclusive of all costs, disbursements and taxes).
November 6, 2015
Thérèse Reilly
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 235
FSCO A14-009374
BETWEEN:
CHENELL SIMPSON
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Tzaferis Personal Injury Lawyers is removed as representative of record for Ms. Simpson.
Ms. Simpson’s Application for Arbitration is dismissed with costs. Ms. Simpson is to pay State Farm’s expenses in the amount of $1,000.00 (inclusive of all costs, disbursements and taxes).
November 6, 2015
Thérèse Reilly
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.