Neutral Citation: 2016 ONFSCDRS 116

FSCO A13-012441 and A14-002147

BETWEEN:

SHAKUR AHMAD

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Alan Mervin

Heard: March 21, 2016 at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Ahmad Christine Pham for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Shakur Ahmad, was injured in a motor vehicle accident on July 13, 2011. He applied for and received statutory 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 Mr. Ahmad 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 hearing are:

Should Applications for Arbitration A13-012441 and A14-002147 be dismissed?
Is the Applicant liable to pay the Insurer’s expenses with respect to this Arbitration?

Result:

Applications for Arbitration A13-012441 and A14-002147 are dismissed.
The Applicant shall pay $1,750.00, inclusive of HST, in expenses to State Farm.

EVIDENCE AND ANALYSIS:

Chronology:

A pre-hearing discussion in this case was held on March 3, 2015 at 9:30 a.m., at the offices of FSCO in Toronto.

At time of the pre-hearing, the Applicant’s representative advised that it was contemplating a motion to be removed from the record. That motion was heard by way of teleconference call, on January 22, 2016, at which time the Applicant’s representative was ordered removed from the record. The Applicant did not attend, although found by the pre-hearing arbitrator to be duly served. The Applicant has been self-represented since that time. He has not contacted FSCO since.

Initially, a third Applicant, Salma Hirsi was also involved in the accident and filed a claim. Her file was joined to Mr. Ahmed’s claims, but has since been resolved and will not proceed. Both of Mr. Ahmad’s files originate from the same accident.

On March 3, 2015, the pre-hearing report letter was sent to the Applicant at his last known address that had been provided to FSCO. As there was some discussion that the Applicant might be in Alberta, at an address that the Applicant’s former representative mentioned at the pre-hearing, copies of the pre-hearing letter and the subsequent notice of hearing were sent to the address on file at FSCO and, in an abundance of caution, copies were also sent to the Alberta address.

Apparently all correspondence sent by the Applicant’s former representative to the Alberta address, was returned by the post office, including a copy of the notice of hearing,

THE HEARING:

On March 21, 2016, at 10:00 am, Counsel for State Farm appeared at the hearing, prepared to proceed. Mr. Ahmad or a representative did not attend.

The hearing for this matter was scheduled to commence on March 21, 2016, and was scheduled for four full days to hear all issues in dispute. At the commencement of the hearing I adjourned the hearing for 40 minutes, in an abundance of caution, to give the Applicant (or anyone who may be appearing on his behalf) an opportunity to appear. The Insurer advised that they had not heard from the Applicant for some time, and were not aware of his whereabouts.

The Applicant failed to appear. At 10:45 a.m., the hearing in this matter proceeded in his absence. I am satisfied that the Applicant was properly served with the Notice of Hearing. That notice contained the following warning to the Applicant;

“if you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings”. [Emphasis added]

A similar warning was also contained in the pre-hearing report sent to the Applicant and his now former representative, who was still on the record at that time.

Further, Rule 37.9 of the Dispute Resolution Practice Code is worded similarly to the warnings above, and is authority for an Arbitrator to proceed with a hearing in the absence of a party where notice has been properly served.

As the Applicant did not appear, and in the absence of any explanation from or on behalf of the Applicant for his non-appearance, the Insurer moved for dismissal of all claims as no evidence was presented on behalf of the Applicant.

As the burden of proof always rests on the Applicant to produce sufficient evidence to establish entitlement to benefits on a balance of probabilities, and, in the absence of any evidence that would support Mr. Ahmad’s claim, I find that the Applicant has failed to meet the burden of proving his claims on a balance of probabilities, and Applications for Arbitration A13-012441 and A14-002147 are therefore both dismissed.

EXPENSES:

After the hearing completed, the Insurer requested an award of expenses, and presented a bill of costs. That bill claimed 29.7 hours at legal aid rates for preparation for the hearing by 2 lawyers and a law clerk at the firm.

The Expense Regulation found in Section F of the Dispute Resolution Practice Code sets out the criteria that an arbitrator can consider when assessing expenses.

In this case, of the seven criteria set out in the regulation, I have considered the following criteria as applicable in this case:

Each party’s degree of success in the outcome of the proceedings;
The conduct of a party that tended to prolong, obstruct or hinder the proceeding; and
Whether any aspect of the proceeding was improper, vexatious or unnecessary.

Although the actual hearing lasted only an hour, as the Applicant did not attend, the Insurer nevertheless had to prepare for what was scheduled to be a full four day hearing, should the Applicant attend.

In the usual course, Arbitrators will schedule a one day hearing in cases where the history of the Applicant tends to indicate that no one will appear at the hearing. In those “no-show” cases, the Insurer is advised in the hearing notice, not to prepare for a full hearing, but rather, should the Applicant appear, the hearing will then be converted to a pre-hearing so that the case can move forward.

That did not happen in this case. For some reason, it was scheduled for 4 days, and remained that way despite the Applicant’s demonstrated unlikeliness to appear at, or participate in proceedings in his application.

Under the circumstances of this case, I find that the Insurer is entitled to its reasonable expenses of this proceeding. The Insurer was completely successful in the result obtained. I have taken into account in assessing expenses, that, although the scheduled four day hearing actually lasted only an hour, the Insurer was required to do at least minimal extra preparation in the unlikely event that the Applicant appeared and the hearing went ahead.

In the usual instance, as indicated above, when the parties have a reasonable expectation that the Applicant will be a “no-show” at the hearing, a one day hearing is usually scheduled. Because this did not happen in this matter and instead, a four day hearing was set down, this would, in my view, require at least some additional preparation than would usually be required for an anticipated no-show hearing in case the Applicant appeared.

In determining the amount of expenses to award, one must examine the invoice submitted by the Insurer in support of its cost request.

The invoice submitted here is somewhat confusing. The fees requested total $2,699.37, but there is an additional line stating “Actual Fees Incurred.” This total is $5,285.00. Without further explanation from the Insurer, I assume that the “actual fees” are the fees that would be charged at the lawyers’ actual hourly rates, as opposed to the total requested which is calculated at the Legal Aid Rate, according to the Regulation. I do not see the relevance of the actual fees with respect to the amount requested.

While I find that some additional amount over the amount that might normally be awarded for a short “no-show” hearing is reasonable, I find that the amount requested under the circumstances of this case is somewhat excessive, inasmuch as despite the 4 day scheduled hearing, the Insurer anticipated that the Applicant would not attend, and additional preparation should be minimal.

The actions of Mr. Ahmad, including his non-attendance at the pre-hearing and motion acted to increase the preparation required, and ultimately, the costs incurred to properly defend this application.

As well, by failing to attend his hearing and therefore abandoning his own arbitration ultimately increased the costs incurred to properly defend this application. He chose not to participate in the proceedings or withdraw his claims at an earlier stage of the proceeding, offering no explanation for his actions.

Under these circumstances, I have decided to fix the expenses payable to State Farm at $1,750.00 inclusive of HST. The only disbursement requested in the bill of costs was $3,000.00 paid for filing, for which the Insurer is not entitled to be reimbursed.

April 15, 2016

Alan Mervin Arbitrator

Date

ARBITRATION ORDER

Financial Services Commission of Ontario