Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 52
FSCO A13-012895
BETWEEN:
SHERRY NYRAKO
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Karina Kowal
Heard: In person at ADR Chambers on February 3, 2015
Appearances: Ms. Sherry Nyrako did not participate Ms. Rania Hafez for Ms. Nyrako Ms. Sheila Morris for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Ms. Sherry Nyrako, was injured in an automobile accident on February 1, 2010 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 Ms. Nyrako, through her 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 Issue Hearing are:
Should Ms. Rania Hafez and/or Action Professional Legal Services be removed from the record as Ms. Nyrako’s legal representative?
Should Ms. Nyrako’s Application for Arbitration be dismissed?
Result:
Ms. Rania Hafez and/or Action Professional Legal Services are removed from the record as Ms. Nyrako’s legal representative.
Ms. Nyrako’s Application for Arbitration is dismissed on a without costs basis.
EVIDENCE AND ANALYSIS:
An initial Pre-Hearing discussion was held in this matter on November 18, 2014. Ms. Nyrako did not appear for the Pre-Hearing as required. As a result, State Farm requested a Resumption of Pre-Hearing and brought a motion for dismissal of the Application for Arbitration should Ms. Nyrako fail to appear.
Consequently, a Resumption of Pre-Hearing was ordered for February 3, 2015. Ms. Nyrako’s attendance was peremptory. ADR Chambers also sent a Pre-Hearing Letter, dated November 18, 2014, via registered mail to Ms. Nyrako’s last known address, informing her of the details of the Pre-Hearing discussion. The letter also stated that should she not participate, the matter would proceed in her absence and I may take steps to dismiss her application.
The Resumption of Pre-Hearing occurred on February 3, 2015. Neither Ms. Hafez (Action Professional Legal Services) or ADR Chambers had been contacted by Ms. Nyrako. Ms. Nyrako did not appear for the Pre-Hearing Resumption marked peremptory. Ms. Hafez informed that her office had made diligent attempts to communicate with Ms. Nyrako to seek instructions, with no return communication.
In accordance with Rule 9.7 and 9.8 of the Dispute Resolution Practice Code (DRPC), Ms. Hafez requested to be removed as representative of record. As Ms. Hafez complied with the aforementioned rules, I grant Ms. Hafez’s motion to be removed as representative of record.
Rule 68 of the Dispute Resolution Practice Code (DRPC) permits an Arbitrator to dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious, or is commenced in bad faith provided written notice has been given to the parties of the intention to dismiss the proceedings.
I am satisfied that Ms. Nyrako was given notice of the Motion as required by Rule 68(2) of the DRPC at her last known addresses contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC.
I am satisfied that Ms. Nyrako was given an opportunity to make submissions should she 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 Ms. Nyrako in dismissing her Application for Arbitration. Therefore, Ms. Nyrako’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 she failed to participate in the proceedings.
As Ms. Nyrako received proper notice that if she did not attend the peremptory Pre-Hearing a dismissal may result, I am granting State Farm’s motion to dismiss the Application for Arbitration on a without costs basis. State Farm consents to a dismissal on a without costs basis.
EXPENSES:
If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with the Dispute Resolution Practice Code.
March 18, 2015
Karina Kowal Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 52
FSCO A13-012895
BETWEEN:
SHERRY NYRAKO
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:
Ms. Rania Hafez and/or Action Professional Legal Services are removed from the record as Ms. Sherry Nyrako’s legal representative.
Ms. Sherry Nyrako’s Application for Arbitration is dismissed on a without costs basis.
March 18, 2015
Karina Kowal Arbitrator
Date
Footnotes
- Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''New Regulation'') came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the ''Old Regulation'') shall be paid under the New Regulation, but in amounts determined under the Old Regulation. As a result, both the Old Regulation and the New Regulation are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and both should be considered.