Claretha Lucind Thomas v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 124

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 124

FSCO A13-009275

BETWEEN:

CLARETHA LUCIND THOMAS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Kimberly Parish

Heard: By telephone conference on March 31, 2016

Appearances: Ms. Claretha Lucind Thomas did not participate

Ms. Anna Korolkova participated for Ms. Claretha Lucind Thomas

Ms. Bita-Mehrin Rajaee participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Claretha Lucind Thomas, was injured in a motor vehicle accident on January 24, 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. Thomas, 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 Hearing are:

Should Ms. Thomas’s Application for Arbitration be dismissed?
Should State Farm be awarded expenses concerning this Application for Arbitration?

Result:

Ms. Thomas’s Application for Arbitration is dismissed.
Ms. Thomas shall pay to State Farm forthwith, $750.00, inclusive of HST, for expenses concerning her Application for Arbitration in this proceeding.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on July 10, 2015 at 9:30 a.m., at the offices of ADR Chambers. Ms. Thomas failed to appear. Ms. Karla Barrette participated on behalf of State Farm. Ms. Elena Steinberg from Taylor, Steinberg & Baber Professional Corporation represented Ms. Thomas. Ms. Bita-Mehrin Rajaee represented State Farm.

On July 10, 2015, I sent a letter by both registered and regular mail to Ms. Thomas at her last known address to advise her of the missed Pre-Hearing discussion. In this letter, I advised Ms. Thomas that a resumption of the Pre-Hearing was scheduled to take place in person on January 7, 2016 at 10:00 a.m., at the offices of ADR Chambers (located at 4101 Yonge St., 6th floor, Toronto, ON, M2P 1N6), and stated in my letter that her attendance was required at this resumption of the Pre-Hearing. I also advised Ms. Thomas in this letter that if she failed to attend the resumption of the Pre-Hearing on January 7, 2016, State Farm may move to request that her claim be dismissed with costs awarded against her. Alternatively, if State Farm did not request that her claim be dismissed, then her file could be closed administratively and costs awarded against her.

A resumption of the Pre-Hearing was held in person at the offices of ADR Chambers on January 7, 2016 at 10:00 a.m. Ms. Thomas did not attend and did not participate. Ms. Karla Barrette participated on behalf of State Farm. Mr. Mark Phillips from Taylor, Steinberg & Baber Professional Corporation represented Ms. Thomas. Ms. Bita-Mehrin Rajaee represented State Farm.

On January 7, 2016, I sent a letter to Ms. Thomas via registered and regular mail to her last known address to advise her of the missed resumption of the Pre-Hearing discussion. The letter provided Ms. Thomas with an Attendance Notice, setting a date of March 31, 2016 at 1:00 p.m., to hear the issues identified in her Application for Arbitration. This was scheduled to be heard by telephone conference call. The letter also advised her that should she not contact our office or participate in any further proceedings, I would be dismissing her Application for Arbitration and considering State Farm’s request for expenses.

On March 31, 2016 at 1:00 p.m., I contacted Taylor, Steinberg & Baber Professional Corporation by telephone and spoke with Ms. Anna Korolkova (licensed paralegal) who represented Ms. Thomas for the scheduled Arbitration proceeding. I also contacted Ms. Bita-Mehrin Rajaee on the telephone. I called Ms. Thomas at the phone number provided on her Application for Arbitration and the additional telephone numbers provided to me by Ms. Korolkova. I was unable to reach Ms. Thomas by telephone. Mr. Korolkova stated that her firm had not been successful in reaching Ms. Thomas by telephone to advise her of the Hearing scheduled for March 31, 2016.

The Dismissal

For the reasons that follow, Ms. Thomas’s Application for Arbitration is dismissed.

As of March 31, 2016, I was unable to contact Ms. Thomas, she had yet to contact her legal representative or ADR Chambers as requested, and had not participated in any of the Arbitration proceedings.

I am satisfied that Ms. Thomas was given notice of all of the proceedings related to her Application for Arbitration at her last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in her absence.

Ms. Thomas bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claim, this Arbitration is dismissed.

EXPENSES:

State Farm requests expenses in this proceeding be awarded against Ms. Thomas in the amount of $750.00, inclusive of HST. Ms. Thomas has failed to participate in a scheduled Pre-Hearing, a resumption of the Pre-Hearing and an Arbitration Hearing. She has not advanced her Application for Arbitration and has not demonstrated an interest in pursuing this Application for Arbitration.

For the reasons I have noted above, I agree with State Farm’s request and find it reasonable that expenses be awarded in the amount of $750.00, inclusive of HST, against Ms. Thomas in this Arbitration proceeding.

April 25, 2016

Kimberly Parish

Arbitrator

Date