Elena Chudakova v. State Farm Mutual Automobile Insurance Company, 2015 ONFSCDRS 83

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 83

FSCO A14-003735

BETWEEN:

ELENA CHUDAKOVA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Charles Matheson

Heard: By telephone conference call on March 26, 2015

Appearances: Ms. Elena Chudakova did not attend

Mr. Sean Brown attended for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Elena Chudakova, was injured in a motor vehicle accident on July 23, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Chudakova, through her 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 the Applicant’s Application for Arbitration be dismissed?
Is State Farm entitled to its costs?

Result:

The Applicant’s Application for Arbitration is dismissed.
The Applicant shall pay the Insurer $1,000.00, forthwith

EVIDENCE AND ANALYSIS:

A Pre-Hearing discussion was held before me on February 9, 2015. At this Pre-Hearing, Applicant’s counsel had admitted that he had lost contact with his client for almost a year, which resulted with his firm making a request to be removed from the record. A total of four letters over 9 months were sent as part of the evidence presented at this Pre-Hearing.

Counsel for the Insurer had no objection to Applicant’s counsel being removed from the file, but added that I should take an adverse inference from the Applicant’s actions.

The last Pre-Hearing letter, dated February 9, 2015, which again was sent to Applicant’s residence, advised her that she was now self-represented and had options to pursue. In any event, she was instructed to contact State Farm or ADR Chambers within 30 days in order to tell the Insurer what her intentions were regarding this application for benefits.

Clearly, after this deadline had been missed, without receiving any communications from the applicant or new counsel, I must conclude that that the Applicant has not manifested any positive actions to support her claim.

I am satisfied that all appropriate steps and efforts were taken to notify the Applicant, thus the Applicant was aware of her obligations. After listening to all of the Insurer’s Counsel’s evidence, I am also satisfied that the Applicant was aware that her failure to attend would result in State Farm bringing a motion to dismiss the Application for Arbitration.

The Applicant has the onus of proof to establish her entitlement to accident benefits under her Application for Arbitration and her failure to attend accordingly means that she has failed to meet this onus.

As Ms. Chudakova has not participated in any of the Arbitration proceedings, and has not yet responded to these numerous communication attempts, I find that this matter falls under Rule 68 of the Dispute Resolution Practice Code (DRPC) which 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 Ms. Chudakova was given notice of the Pre-Hearing as required by Rule 68(2) of the DRPC at her last known address(s) contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC.

I am satisfied that Ms. Chudakova was given an opportunity to make submissions had she wished to object to the dismissal as required by Rule 68(3) of the DRPC. As Ms. Chudakova did not participate, her 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 proceeding.

Conclusion

Therefore, I find that the above reasons are sufficient to dismiss the Application for Arbitration, forthwith.

EXPENSES:

Ms. Brown has requested expenses in this matter as a result of the dismissal of the Applicant’s Application for Arbitration. I have listened to the Insurer’s arguments for costs for the whole associated file. I have also considered Rule 75.2(d) of the DRPC with regard to the criteria in determining whether costs may be awarded. Furthermore, I find that Ms. Chudakova 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, which is payable forthwith.

April 21, 2015

Charles Matheson

Arbitrator

Date