Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 11
FSCO A13-013306
BETWEEN:
KIRUBADEVI NATHANIAL
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before:
Arbitrator Janet Davies
Heard:
By teleconference on November 30, 2015
Appearances:
Mrs. Kirubadevi Nathanial did not participate
Ms. Shivani Mehta participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Mrs. Kirubadevi Nathanial, was injured in a motor vehicle accident on October 6, 2009 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. Nathanial, 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 Motion are:
Should Mrs. Nathanial’s Application for Arbitration be dismissed?
Is State Farm entitled to its expenses in preparing for and attending the Arbitration proceedings?
Result:
Mrs. Nathanial’s Application for Arbitration is dismissed.
State Farm waived its expenses.
EVIDENCE AND ANALYSIS:
Background
On October 29, 2013, an Application for Arbitration was filed on behalf of the Applicant by her legal representative, Eshel Law Firm, who was subsequently removed from the record at a Pre-Hearing scheduled for October 8, 2015 as counsel was unable to reach their client to receive instructions. The Applicant was advised by way of a letter on October 14, 2015 that she was now self-represented
Evidence
As Mrs. Nathanial did not participate in the Pre-Hearing held on October 8, 2015, the Insurer requested that the Application for Arbitration be dismissed on a with cost basis. A Motion was scheduled for November 30, 2015, and in the letter, dated October 14, 2015, the Applicant was advised to contact our office with information on how she wished to proceed with her Application by November 30, 2015. The Applicant was advised that should she wish to participate that the Motion to dismiss would be converted to a Pre-Hearing to permit her to proceed with her Application with or without legal representation. She was advised that should she fail to participate that I may dismiss her Application.
On November 30, 2015, I attempted to contact the Applicant at her last known telephone number without success.
Analysis
Rule 68 of the Dispute Resolution Practice Code (“the DRPC”) 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 Mrs. Nathanial was given notice of the proceedings as required by Rule 68.2 of the DRPC at her last known address contained in the records of the Dispute Resolution Group and the Motion filed by her legal representative, as required by Rule 5.7 of the DRPC.
I am satisfied that Mrs. Nathanial 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 undue prejudice to Mrs. Nathanial in dismissing her Application for Arbitration. Therefore, Mrs. Nathanial’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 wholly in the proceedings.
EXPENSES:
State Farm waived their request for expenses.
January 13, 2016
Janet Davies Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 11
FSCO A13-013306
BETWEEN:
KIRUBADEVI NATHANIAL
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:
Mrs. Nathanial’s Application for Arbitration is dismissed.
State Farm waived its expenses.
January 13, 2016
Janet Davies Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule – Accidents on or after November1, 1996, Ontario Regulation 403/96, as amended.