Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 264 FSCO A13-000850

BETWEEN:

IYATHURAI ANANTHARAJAH Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Isabel Stramwasser Heard: November 18, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on November 19, 2015.

Appearances: Sean Chambers for State Farm Mutual Automobile Insurance Company No one appearing for Iyathurai Anantharajah

Issues:

The Applicant, Iyathurai Anantharajah, claims that he was injured in a motor vehicle accident on March 12, 2010. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose concerning his entitlement to caregiver, attendant care and housekeeping/home maintenance benefits. The parties were unable to resolve their disputes through mediation and, in January 2013, Mr. Anantharajah 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 arbitration, as identified in the Application for Arbitration and clarified in the September 4, 2015 letter of Arbitrator Kowalski, are as follows:

1. Is Mr. Anantharajah entitled to caregiver benefits in the following amounts, for services provided by Iyathurai Davaraja (less amounts paid by State Farm)? a. $300.00 per week from March 12, 2010 to April 7, 2011 b. $282.00 per week from April 8, 2011 to March 28, 2012

2. Is Mr. Anantharajah entitled to attendant care benefits in the following amounts, for services provided by Iyathurai Davaraja (less amounts paid by State Farm)? a. $283.05 per month from April 10, 2010 to November 30, 2010 b. $174.52 per month from December 1, 2010 to March 12, 2011

3. Is Mr. Anantharajah entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week for services provided by Iyathurai Davaraja between March 12, 2010 and March 28, 2012 (less amounts paid by State Farm)?

4. Is State Farm liable to pay Mr. Anantharajah’s expenses in respect of the arbitration?

5. Is Mr. Anantharajah liable to pay State Farm’s expenses in respect of the arbitration?

6. Is Mr. Anantharajah entitled to interest for the overdue payment of benefits?

Despite having applied for arbitration at the Commission, Mr. Anantharajah failed to attend at any proceedings before the Commission and did not communicate with either his former representative, with State Farm or with the Commission to explain his absence. Most notably, Mr. Anantharajah failed to provide evidence at the arbitration hearing in support of his claims against State Farm.

As a result, the following preliminary issue arises:

1. Did Mr. Anantharajah have sufficient notice of the arbitration hearing?

If this preliminary issue is answered in the affirmative, then the substantive issues raised in Mr. Anantharajah’s Application for Arbitration are subject to dismissal for lack of evidence.

If this preliminary issue is answered in the negative, then the arbitration hearing ought to be rescheduled to allow Mr. Anantharajah sufficient notice to give evidence in support of his claims.

Result:

1. Mr. Anantharajah had sufficient notice of the arbitration hearing. As a result, his claims, as identified in the Application for Arbitration and clarified in Arbitrator Kowalski’s letter of September 4, 2015, are dismissed.

2. The Insurer is entitled to its expenses of these proceedings in the amount of $750.00.

REASONS:

Pre-hearing discussions rescheduled due to the Applicant’s unresponsiveness

A first pre-hearing discussion in this matter was scheduled for November 13, 2013 at the Commission offices in Toronto, but it was adjourned. The Applicant’s representatives, T.E. Paralegals Professional Corporation (later renamed Eshel Law Firm Professional Corporation), requested the adjournment on the basis that their client had been “unresponsive until recently” and they required additional time to obtain third party records. In April 2014, the Applicant’s representatives advised that they had received the necessary records and the pre-hearing was set down for December 1, 2014.

Shortly before the second pre-hearing scheduled for December 1, 2014, the Applicant’s representatives sought to have the matter proceed by way of teleconference on the basis that they were unable to contact their client. As the arbitrator conducting that pre-hearing discussion, I phoned the Applicant’s representatives several times between 2:30 and 3:00 p.m., but had no response. I left a voicemail. The Applicant’s representatives did not contact my office that day. Although the Insurer was ready to proceed, neither the Applicant nor his representatives participated at the pre-hearing discussion of December 1, 2014. As a result, a new pre-hearing date was booked.

The third pre-hearing discussion was scheduled to take place in person on September 3, 2015. However, Eshel Law Firm explained that they were unable to contact their client and requested that the parties attend by telephone. In response to this request, made on consent of State Farm, Arbitrator Kowalski permitted the matter to proceed by way of teleconference.

Removal of Applicant’s representatives from the record due to his unresponsiveness

Prior to the pre-hearing discussion of September 3, 2015, the Applicant’s representatives notified the Applicant, the Insurer and the Commission that they would be seeking an order on September 3, 2015 to be removed as Mr. Anantharajah’s representatives of record. The Insurer and its counsel appeared at the motion, but did not participate in it or oppose it.

Arbitrator Kowalski stood the matter down for 30 minutes to allow Mr. Anantharajah additional time to attend, but he did not appear. The Arbitrator was unable to reach him at the telephone number in the Commission file or at any of the telephone numbers provided to her by Neha Kohli, licensed paralegal, who participated on behalf of Eshel Law Firm. Consequently, the motion proceeded in the Applicant’s absence.

After hearing submissions, Arbitrator Kowalski ordered that Eshel Law Firm be removed as the Applicant’s representatives of record in this arbitration. The basis of the order was that Eshel Law Firm had been unable to contact their client, despite repeated attempts. When that order was made, the Applicant became self-represented in these proceedings.

Pre-hearing discussion of September 3, 2015

The pre-hearing discussion proceeded by teleconference on September 3, 2015, immediately following the motion. The representative for State Farm attended, but no one attended on behalf of Mr. Anantharajah.

At the pre-hearing discussion, Arbitrator Kowalski made three production orders. Specifically, she ordered that Mr. Anantharajah produce clinical notes and records from his family doctor and other treatment providers; his decoded OHIP summary; and, details regarding his service providers, including their names and contact information, the services they provided and his proof of payment.

Arbitrator Kowalski then scheduled the hearing for November 18, 2015 at the Commission offices in Toronto. A pre-hearing letter dated September 4, 2015 was sent to Mr. Anantharajah at his last known address indicating that the time for hearing would be 9:30 a.m. However, a formal Notice of Hearing was sent to Mr. Anantharajah at his last known address indicating that the time for hearing would be 10 a.m. on November 18, 2015.

Did Mr. Anantharajah have sufficient notice of the Arbitration Hearing?

The arbitration proceeded before me at 10:00 a.m. on November 18, 2015 at the Commission offices in Toronto. Counsel appeared in person on behalf of State Farm. When Mr. Anantharajah had not appeared at 10:00 a.m., I gave him 20 minutes’ additional time. By 10:20 a.m., Mr. Anantharajah had still not appeared.

I am satisfied that Mr. Anantharajah was properly served with the Notice of Hearing. The notice was sent to his last known address. Rule 9 of the Code provides that parties must provide the Dispute Resolution Group with written notice of any change of their address, telephone number and e-mail address and that the Dispute Resolution Group is entitled to rely upon the last known addresses, telephone numbers and e-mail addresses contained in its records.

I proceeded with the arbitration in the Applicant’s absence. Rule 37.9 provides that, where notice of hearing has been sent to a party and a party does not attend, the arbitrator may proceed with the hearing in the party’s absence and the party is not entitled to any further notice in the proceeding.

Under the heading “Issues,” above, I stated that a finding that Mr. Anantharajah was given proper notice could lead to a dismissal of his claims for lack of evidence. I explain this as follows. Given that I am satisfied that the Applicant had proper notice of this hearing, I am also satisfied that he had fair opportunity to advance his claim. In the absence of any evidence from the Applicant in this case, I find that there is no basis to his claims. In sum, Mr. Anantharajah failed to participate in these proceedings and, as a result, he failed to meet the burden of proof in this arbitration.

Accordingly, I dismiss Mr. Anantharajah’s claims. I communicated this decision orally on November 18, 2015 and reserved my reasons for a written decision.

EXPENSES:

State Farm is awarded its expenses of this arbitration

State Farm claimed its expenses incurred in this arbitration and made submissions at the hearing. I award State Farm those expenses. I delivered this decision orally on November 18, 2015, with written reasons to follow.

Arbitrators are bound by statute when awarding expenses. Specifically, subsection 282(11) of the Insurance Act gives me the authority to award expenses, subject to the regulations. Section 75 of the Code and section 12 of the Automobile Insurance, RRO 1990, Reg 664, s 12, as amended (the “Expense Regulation”) provide the seven criteria that “shall” be considered for the purposes of awarding all or part of incurred legal expenses.

I find that the first, fourth and fifth criteria support an award of expenses to State Farm in this case. Those criteria have regard to:

1. Each party's degree of success in the outcome of the proceeding;
2. 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; and,
3. Whether any aspect of the proceeding was improper, vexatious or unnecessary.

With regard to the first criterion, State Farm was entirely successful in this arbitration, given the Applicant’s failure to participate. With regard to the fourth and fifth criteria, by failing to participate meaningfully in the process from on or after the initial pre-hearing discussion originally scheduled for November 13, 2013, Mr. Anantharajah prolonged the proceedings in the arbitration and rendered some or all of them unnecessary.

The award of expenses is set at $750.00

State Farm seeks expenses in the amount of $5,541.29, but advised that it would be satisfied with whatever amount the Commission awarded in the circumstances. Counsel for the Insurer provided a bill of costs showing the breakdown of expenses as $5,092.00 in legal fees and $449.29 in disbursements.

I find it fair in the circumstances to allow $750.00 for legal fees and disbursements. In doing so, I have had regard to subsection 3(1) of the Schedule to the Expense Regulation and section 78.1 of the Code. The Code specifies that the applicable rate is set out in Ontario’s legal aid tariff, as set out under the Legal Aid Services Act, 1998, for civil matters before the Ontario Superior Court of Justice.

On the one hand, I have considered the lack of participation by the Applicant at nearly all material times since the Application for Arbitration was filed in January 2013. I have also noted that there were only three proceedings at the Commission, all of which were brief and uncomplicated and two of which the Insurer attended by telephone.

On the other hand, I have taken into consideration the fact that the Applicant put three substantive claims into dispute and the Insurer had to take steps to defend against them. While I acknowledge that the Insurer had no choice but to mount a defence against Mr. Anantharajah’s claims, there was no urgency in finalizing that defence by November 18, 2015 because the Insurer was aware that if the Applicant appeared at the arbitration scheduled for that date, the matter would be converted to a pre-hearing discussion and a future arbitration date would be set (as set out in Arbitrator Kowalski’s letter of September 4, 2015). In addition, the production orders made at the September 2015 pre-hearing discussion show that the Insurer lacked many documents and therefore the file was not as complicated as others often are at this stage.

CONCLUSION:

Mr. Anantharajah’s claims for accident benefits are dismissed. The Insurer is entitled to its expenses of this arbitration in the amount of $750.00.

December 4, 2015

Isabel Stramwasser Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Iyathurai Anantharajah’s claims are dismissed.
2. Iyathurai Anantharajah shall pay to State Farm Mutual Automobile Insurance Company its expenses of this arbitration in the amount of $750.00.

December 4, 2015

Isabel Stramwasser Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.