Yi Cheng Yang v. State Farm Mutual Automobile Insurance Company, 2015 ONFSCDRS 249

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 249

FSCO A13-013139

BETWEEN:

YI CHENG YANG

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on October 1, 2015

Appearances: Mr. Yi Cheng Yang did not participate

Ms. Tania Shaheen represented Mr. Yi Cheng Yang

Ms. Robynn Pounder participated for State Farm Mutual Automobile Insurance Company

Ms. Wilhelmena Eastmond represented State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Yi Cheng Yang, was injured in a motor vehicle accident on August 2, 2011 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 Mr. Yang, through his representative, 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 Mr. Yang’s Application for Arbitration be dismissed?
Is State Farm entitled to their expenses in preparing for and attending the Pre-Hearing proceedings from Mr. Yang, and if so, in what amount?

Result:

Mr. Yang’s Application for Arbitration is dismissed.
State Farm is not entitled to their expenses in preparing for and attending the Pre-Hearing proceedings.

EVIDENCE AND ANALYSIS:

Chronology

The Applicant, Mr. Yang, has failed to attend 3 separately scheduled Pre-Hearings in addition to the Pre-Hearing of August 31, 2015. The August 31, 2015 Pre-Hearing was conducted via Skype with Mr. Yang in attendance from China. A 5th and final Pre-Hearing and was ordered to be reconvened on October 1, 2015. The Applicant was ordered to attend the Pre-Hearing at the offices of ADR Chambers at 3:30pm on October 1, 2015.

Mr. Yang was given both verbal and written notice that he must attend the Pre-Hearing on October 1, 2015 or his Application for Arbitration would be dismissed if he failed to appear in person.

The Motion

I had personally instructed Mr. Yang when he was present on Skype that it was mandatory for him to appear in person on October 1, 2015. He was told that if he failed to appear that it would result in his Arbitration Application being dismissed. These instructions were also sent via letter to his address.

Rule 68 of the Dispute Resolution Practice Code (“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 Mr. Yang was given notice of the proceedings as required by Rule 68(2) of the DRPC at his 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 Mr. Yang was given the opportunity to make submissions should he wish to object to the dismissal as required by Rule 68(3) of the DRPC.

I am also satisfied that there is no prejudice to Mr. Yang in dismissing his Application for Arbitration. Therefore, since Mr. Yang did not attend the proceeding on October 1, 2015, I am now ordering Mr. Yang’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 he failed to participate in the proceedings.

EXPENSES:

Insurer’s Counsel requested costs in relation to this Application for Arbitration be assessed against the Applicant for his non-attendance. This request for an order of costs against the Applicant was denied.

November 23, 2015

Jeff Musson

Arbitrator

Date