Khanh Tran v. State Farm Mutual Automobile Insurance Company, 2015 ONFSCDRS 46

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 46

FSCO A13-006053

BETWEEN:

KHANH TRAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: October 24, 2014 at the offices of the Financial Services Commission of Ontario in Toronto and by way of written submissions, in accordance with Rule 68 of the Dispute Resolution Practice Code

Appearances: No one participating on behalf of Mr. Tran

Shea Lewis for State Farm Mutual Automobile Insurance Company

Issues:

The issue to be decided at this time is:

Pursuant to Rule 68 of the Dispute Resolution Practice Code, should this application be dismissed without a hearing because it is frivolous, vexatious or was commenced in bad faith?

Result:

This application is dismissed.

EVIDENCE AND ANALYSIS:

The Applicant, Khanh Tran, claims to have been injured in a motor vehicle accident on July 10, 2011. He applied for statutory accident benefits under the Schedule¹ from State Farm Mutual Automobile Insurance Company (“State Farm”). Disputes arose over the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and, in May 2013, the Applicant applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended. At the time this application was filed, the Applicant was represented by Mr. L. Brent Vickar, legal counsel, of Longley/Vickar LLP. A Response was received from the Insurer around July 2013.

A pre-hearing discussion in this case was scheduled to be held on July 31, 2014, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario. At that time, Ms. Lewis, legal counsel, appeared on behalf of State Farm. The Applicant did not attend before me on July 31, 2014. Mr. Vickar was reached by telephone and indicated that he had no instructions to participate in the pre-hearing discussion and that he intended to bring a motion seeking to withdraw from this proceeding as the Applicant’s legal representative. Mr. Vickar brought such a motion and made it returnable on October 24, 2014. Mr. Vickar served notice of that motion upon the Applicant by mailing it to the Applicant at his last known address.

On July 31, 2014, I wrote to the Applicant to advise the Applicant to immediately contact Mr. Vickar and to instruct the Applicant to attend before me at 11:00 a.m. on October 24, 2014. I warned the Applicant that the Insurer had indicated that it would be seeking an order dismissing this application.

On October 24, 2014, the Applicant failed to attend. After waiting 30 minutes, I proceeded to hear Mr. Vickar’s motion and I granted his request and removed him from the record as the Applicant’s legal representative.

The Insurer then requested that this application be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code. Pursuant to Rule 68, an arbitrator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith. State Farm also sought an order for its expenses of this proceeding, fixed in the amount of $1,700.00 (or such other amount as I deemed appropriate).

On October 24, 2014, I wrote to the Applicant at his last known residential address and advised him that it was my intention to grant the Insurer’s requests unless he could provide reasonable grounds for doing otherwise. In accordance with Rule 68.3, I advised him that if he wished to dispute such a dismissal (or an award of expenses), he would be granted until November 21, 2014 to serve upon State Farm and file with me any written submissions he wished me to consider, setting out the grounds upon which he objected to the dismissal of the proceeding or setting out any other issues or concerns.

To date, the Applicant has delivered no written (or other) submissions explaining why this application should not be dismissed. On March 6, 2015, counsel for State Farm advised me that State Farm is requesting an order dismissing this application.

While I do not have sufficient evidence before me to conclude that this application was commenced in bad faith, at this point, it appears to me that the Applicant has manifested no interest in pursuing these claims. This problem is further exacerbated by his failure to communicate with his own legal representative, the Insurer or the Financial Services Commission and his failure to participate in these proceedings. It would be unreasonable to force the Insurer to expend more time or effort on this matter. In these circumstances, the proceeding has now become frivolous or vexatious. I shall grant the Insurer’s motion to dismiss this application pursuant to Rule 68 of the Dispute Resolution Practice Code.

I shall also award to the Insurer its expenses of this proceeding, fixed in the amount of $1,000.00 (inclusive of all fees, disbursements and any applicable taxes).

March 11, 2015

Richard Feldman

Arbitrator

Date