Neutral Citation: 2016 ONFSCDRS 12 FSCO A14-001674

BETWEEN:

ELAVARASAN PONNUTHURAI Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Janet Davies

Heard: By teleconference on October 30, 2015 and November 27, 2015

Appearances: Mr. Elavarasan Ponnuthurai did not participate Ms. Stacey Iordanis participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Elavarasan Ponnuthurai, was injured in a motor vehicle accident on May 15, 2010 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 Mr. Ponnuthurai, through his 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 Mr. Ponnuthurai’s Application for Arbitration be dismissed?
Is State Farm entitled to its expenses in preparing for and attending the Arbitration proceedings in the amount of $3,772.71, payable forthwith.

Result:

Mr. Ponnuthurai’s Application for Arbitration is dismissed.
State Farm is entitled to its expenses in preparing for and attending the Arbitration proceedings in the amount of $3,772.71, payable forthwith.

EVIDENCE AND ANALYSIS:

Background

An Application for Arbitration was filed on behalf of the Applicant by his legal representative, Laraia Nterekas Professional Corporation, on February 18, 2014. Laraia Nterekas Professional Corporation was subsequently removed from the record on August 17, 2015, due to a breakdown in the client/solicitor relationship. The Applicant was notified of this by letter and was to contact our office no later than September 30, 2015 as to how he wished to proceed with this Application or I would assume he had chosen not to move forward with his claim and close the file administratively.

Evidence

On September 28, 2015, the Insurer requested that the Application be dismissed rather than closed administratively should the Applicant not participate by September 30, 2015. As the Applicant did not contact our office as requested, the Insurer’s Motion to dismiss was scheduled for October 30, 2015, and notice of the Motion was sent to the parties on October 1, 2015. The letter also set out that should the Applicant wish to proceed with his Application, the Motion would be converted to a Pre-Hearing to permit him to proceed with his Application. He was also advised that in the event that he did not participate, that I may dismiss his Application.

On the Motion date of October 30, 2015, I was able to contact the Applicant who participated in the Motion and he advised that he would be retaining new counsel to act on his behalf and requested time to do so.

The Insurer advised the Applicant there was limited paperwork to support his claim for benefits and that if he considered withdrawing his claim, they would not seek their costs in the amount of $3,772.71. The Applicant was advised that if he wished to withdraw the Application, he could do so by e-mail to both myself and counsel. The Applicant’s mailing address and e-mail were confirmed and notice of a resumption date of November 27, 2015 was sent by both mail and e-mail.

On November 26, 2015, I attempted to contact the Applicant to remind him of the Motion, without success. On November 27, 2015, I attempted, over the course of one hour to reach the Applicant by telephone to participate in the proceedings, 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 Mr. Ponnuthurai was given notice of the proceedings as required by Rule 68.2 of the DRPC at his last known address contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the DRPC.

I am satisfied that Mr. Ponnuthurai was given an opportunity to make submissions should he 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 Mr. Ponnuthurai in dismissing his Application for Arbitration. Therefore, Mr. Ponnuthurai’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 he failed to participate wholly in the proceedings.

EXPENSES:

Wawanesa submitted a Cost Outline of their expenses in the amount of $3,772.71. These costs did not include any amounts incurred after August 20, 2015 in “throw away costs” in having to continue with the Arbitration proceedings. In determining the quantum of the award, the rate claimed is in keeping with Rules 75.2 and 78.1 of the DRPC, and the amount of $3,772.71 (all inclusive) is awarded to State Farm as Mr. Ponnuthurai unnecessarily prolonged the Arbitration process. The amount is payable forthwith.

January 13, 2016

Janet Davies Arbitrator

Date

Financial Services Commission of Ontario