Marco Cippollone v. State Farm Mutual Automobile Insurance Company, 2015 ONFSCDRS 39

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 39

FSCO A13-014239

BETWEEN:

MARCO CIPPOLLONE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Charles Matheson

Heard: By telephone conference call on February 19, 2015

Appearances: Mr. Marco Cippollone did not participate

Mr. Andrew McKague attended for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Marco Cippollone, was injured in an automobile accident on September 2, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) under the Schedule. ¹ The parties were unable to resolve their disputes through mediation and Mr. Cippollone, through his legal 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 Preliminary Hearing are:

Should Mr. Cippollone’s Application for Arbitration be dismissed?
Is State Farm entitled to their expenses for these Arbitration proceedings?

Result:

Mr. Cippollone’s Application for Arbitration is dismissed.
State Farm is entitled to their expenses in these Arbitration proceedings in the amount of $1,000.00, to be paid forthwith.

EVIDENCE AND ANALYSIS:

The first Pre-Hearing discussion was held on January 27, 2015, in which Mr. Cippollone did not attend. At this Pre-Hearing, Ms. Persaud of Laraia Nterekas Professional Corporation represented the Applicant. Ms. Persaud did represent that the client had become uncooperative and uncommunicative for almost a year prior to the Pre-Hearing and as such, asked that she and her firm be removed from the record.

This motion was granted at that time. A Pre-Hearing Letter was sent to the Applicant’s last known address which spelled out his obligations to continue as a self-represented claimant or hire another lawyer to represent him. The teleconference coordinates were also given in this letter so he could participate at the Resumption.

After waiting 15 minutes on the phone with Mr. McKague, I deemed that the Applicant had chosen not to participate in the Arbitration process of his claim. Mr. McKague then made his motion to dismiss the claim with costs, to be paid forthwith.

As Mr. Cippollone has not participated in any of the Arbitration proceedings, I take notice of Mr. McKague’s motion under Rule 68 of the Dispute Resolution Practice Code (“DRPC”). This rule 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. Cippollone was given notice of the Pre-Hearings 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. Cippollone was given an opportunity to make submissions should he wish to object to the dismissal as required by Rule 68(3) of the DRPC.

As Mr. Cippollone did not participate, his 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 proceeding.

EXPENSES:

State Farm requested their expenses in the amount of $4,400.00 for having to prepare for and attend 2 Pre-Hearing discussions in which Mr. Cippollone did not attend.

I have considered Rule 75.2(d) of the DRPC having regard to the criteria in determining whether costs may be awarded and find that Mr. Cippollone prolonged and hindered the Arbitration proceedings. In determining the quantum, I have considered Rule 78.1 of the DRPC and find that State Farm is entitled to expenses assessed at $1,000.00 in “throw away” costs in having to prepare for and attend in person for 2 Pre-Hearing discussions by telephone without the participation of Mr. Cippollone.

March 3, 2015

Charles Matheson

Arbitrator

Date