Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 57

FSCO A13-013309

BETWEEN:

NATTASSIA L.S. WYNTER

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Richard Feldman

Heard: December 19, 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 Ms. Wynter Leilah Edroos 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 ("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, Ms. Nattassia L.S. Wynter, claims to have been injured in a motor vehicle accident on August 28, 2010. She 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 October 2013, Ms. Wynter 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 Tal Eshel. A Response was received from the Insurer in December 2013.

A pre-hearing discussion in this case was scheduled to be held on December 19, 2014, at 11:00 a.m., at the offices of FSCO. At that time, Ms. Leilah Edroos participated on behalf of State Farm. The Applicant did not attend before me on December 19, 2014, despite my writing to her on October 31, 2014 to advise her that she should be present as her representatives were seeking withdraw from the proceeding as her legal representatives of record and State Farm had indicated that it would be bringing a motion to dismiss her claims because she failed to communicate with her own legal representatives or demonstrate any awareness of, or interest in, these proceedings.

Neha Kohli, licensed paralegal, appeared on behalf of Eshel Law Firm on December 19, 2014 to argue the motion by that firm seeking to be removed from the record as the legal representatives for the Applicant. That motion was granted on December 19, 2014 and Eshel Law Firm was permitted to withdraw from the proceeding as the Applicant’s legal representatives.

State Farm then requested that this application be dismissed pursuant to Rule 68 of the 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.

On December 19, 2014, I wrote to the Applicant at her last known residential address and advised her that it was my intention to grant the Insurer’s request to dismiss this application unless she could provide reasonable grounds for my doing otherwise. In accordance with Rule 68.3, I advised her that if she wished to dispute such a dismissal, she would be granted until January 23, 2015 to serve upon State Farm and file with me any written submissions she wished me to consider, setting out the grounds upon which she 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. I requested that counsel for the Insurer indicate in writing what order was being sought by the Insurer. On February 3, 2015, Ms. Edroos wrote to me to advise that State Farm is requesting an order dismissing this application, without "costs".

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 her failure to communicate with her own legal representatives, the Insurer or FSCO and her 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.

March 18, 2015

Richard Feldman Date

Arbitrator