Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 151
FSCO A13-009541
BETWEEN:
YU MING
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Harvey Savage
Heard: In person at ADR Chambers on April 27, 2016
Appearances: Mr. Yu Ming did not participate Ms. Sarah Brown participated for Mr. Yu Ming Ms. Stacey Iordanis participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Mr. Yu Ming, was injured in a motor vehicle accident which occurred on December 2, 2010. He applied for 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 the Applicant 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. Sarah Brown and Kanevsky Law Office be removed from the record?
Should the Applicant’s Application for Arbitration be dismissed?
Result:
Ms. Sarah Brown and Kanevsky Law Office are removed from the record.
The Applicant’s Application for Arbitration is dismissed.
EVIDENCE AND ANALYSIS:
A Pre-Hearing resumption was held by teleconference on January 28, 2016 before Arbitrator Kimberly Parish. The Applicant did not appear. Ms. Victoria Gorbenko, licensed paralegal, represented Mr. Ming on behalf of her principal, Ms. Olga Kanevsky. Ms. Angela Romano represented State Farm.
During the Pre-Hearing resumption, Applicant’s Counsel advised that she was not able to obtain any instruction for the resumption and that the office had thus far been able to successfully contact the Applicant. At the resumption, Ms. Gorbenko indicated that her firm, Kanevsky Law Office, intended to file a Motion to be removed from the record.
On April 8, 2016, a Motion to be removed from the record was filed with ADR Chambers by Kanevsky Law Office along with an Affidavit of Service on counsel for the Insurer and on the Applicant by regular mail to the two addresses that he provided on the record. The Motion was accompanied by an Affidavit documenting many unsuccessful attempts to contact the Applicant. Applicant’s counsel stated that Kanevsky Law Office wished to be removed from the record as a result of a complete breakdown in the relationship of solicitor and client. Arbitrator Parish deferred the hearing of the Motion to the Hearing Arbitrator because of the close proximity to the Hearing date, scheduled to commence April 27, 2016 for three days.
Ms. Sarah Brown from Kanevsky Law Office appeared at the Hearing representing the Applicant, and Ms. Stacey Iordanis appeared representing State Farm. Although properly served at his provided addresses, the Applicant did not appear.
At the Hearing, Ms. Brown presented her Motion for Kanevsky Law Office to be removed on the basis of the materials filed in support. Ms. Iordanis did not oppose the Motion.
Having reviewed the materials and listened to Ms. Brown’s submissions, I have concluded that there was a complete breakdown in communication between the Applicant and Kanevsky Law Office.
I have therefore removed from the record Ms. Sarah Brown and Kanevsky Law Office.
I am further satisfied that the Applicant has been notified of all proceedings to date and was either aware that he was to attend the Arbitration Hearing or wilfully placed himself in a position of not being aware by failing to notify either ADR Chambers or any counsel, including his previous counsel, that his address had changed. I am also satisfied that the Applicant was aware or ought to have been aware that his failure to attend might result in State Farm bringing a Motion to dismiss the Application for Arbitration. The Applicant has the onus of proof to establish his entitlement to accident benefits under his Application for Arbitration and his failure to attend accordingly means that he has failed to meet this onus.
Conclusion
Therefore, I find all of the above reasons are sufficient both to remove Ms. Sarah Brown and Kanevsky Law Office from the record and to dismiss the Application for Arbitration.
EXPENSES:
State Farm did not request expenses. There is no Order for expenses.
May 24, 2016
Harvey Savage Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 151
FSCO A13-009541
BETWEEN:
YU MING
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 it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Ms. Sarah Brown and Kanevsky Law Office are removed from the record.
The Applicant’s Application for Arbitration is dismissed.
May 24, 2016
Harvey Savage Arbitrator
Date
Footnotes
- Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “new SABS”) came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “old SABS”) shall be paid under the new SABS, but in amounts determined under the old SABS.