Hana Yilma v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 157

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 157

FSCO A13-008862

BETWEEN:

HANA YILMA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Charles Matheson

Heard: In person at ADR Chambers on January 26, 2016 and April 19, 2016

Appearances: Ms. Hana Yilma did not participate

Mr. Jean-Claude Rioux and Ms. Erin VanderVeer participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Hana Yilma, claimed to be injured in a motor vehicle accident on February 8, 2011. She applied for 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 Ms. Yilma 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 Preliminary Issue Hearing are:

Was Ms. Yilma, on the balance of probabilities, involved in the February 8, 2011 motor vehicle accident?
Is State Farm or Ms. Yilma liable to pay the expenses of this Preliminary Issue Hearing?

Result:

The Applicant was not involved in the February 8, 2011 accident and, as a result, her Application for Arbitration is dismissed.
The Insurer did not request any costs associated with this Preliminary Issue Hearing. Accordingly, this Application for Arbitration is dismissed without costs.

EVIDENCE AND ANALYSIS:

Background

The self-represented Applicant, Ms. Hana Yilma, did not participate in the January 26, 2016 Preliminary Issue Hearing scheduled by ADR Chambers. It was reported to me by a family member that she was ill and unable to attend, at which time I wrote to her asking for proof of her illness and a date that would be suitable for her to resume the Hearing.

The Applicant wrote back to ADR Chambers, provided the proof of illness, and suggested that her witnesses would be in the country and ready to testify on her behalf after late March 2016.

I canvassed some dates with the Insurer and presented these dates to the Applicant in another letter, dated February 29, 2016. This letter was sent via registered courier to her last known address as were the previous Pre-Hearing letters.

The Applicant did not respond to the February 29, 2016 letter, and did not select a date for this Preliminary Issue Hearing resumption. I was forced to select a date for the proceeding, which was April 19, 2016.

In the February 29, 2016 letter, I made clear the consequences of the Applicant’s actions should she not respond to my letter or participate at the next Preliminary Issue Hearing, one of the consequences being the Application for Arbitration being dismissed with costs, even in her absence. It was made pre-emptory on the Applicant to participate at this Preliminary Issue Hearing of April 19, 2016. The Insurer’s documents were sent on time and as scheduled to the Applicant’s same address in anticipation of this April 19, 2016 Preliminary Issue Hearing, thus I find that proper notice was given to the Applicant.

Decision

The Preliminary Issue Hearing convened at 10:00 a.m. on April 19, 2016 at 180 Duncan Mill Road. The Applicant did not attend. I then waited for 30 minutes before allowing the Insurer to commence presenting its case.

The Insurer’s Counsel pointed out that the Applicant did not appear, as he suspected she wouldn’t, as her claim was allegedly fraudulent in nature, in that the Applicant was not in the vehicle she claimed to be in at the time of the accident.

The only evidence that was presented to me was that of a Mr. Robert Irwin who appeared via Skype. Mr. Irwin was the only person who witnessed the accident and spoke to the occupants of both vehicles immediately after the accident. Mr. Irwin confirmed the accident intersection. Mr. Irwin testified that he was behind the gray vehicle that was eventually hit in the intersection. Mr. Irwin stopped at the scene and looked into the second vehicle, which ran through the red light and struck the vehicle he was following. This second vehicle was described as a black car.

Mr. Irwin testified that the occupant of the second car, the same car the Applicant alleged she was in at the time of the accident, had only one dark skinned male occupant.

Counsel for the Insurer argues that the Applicant did not participate for the third time during this Arbitration proceeding and as such, she has not met her burden of proof that she was, on the balance of probabilities, in the motor vehicle accident, and as such I should find that the Applicant was not in the motor vehicle accident and her claim for benefits were indeed fraudulent.

With no other evidence to the contrary, I am convinced that the letter sent to the Applicant was received and the consequences for not participating in this Preliminary Issue Hearing were made clear to the Applicant.

I agree with Insurer’s Counsel that the Applicant’s choice of not participating at this proceeding was fatal to her case, as she did not prove on the balance of probabilities that she was involved in the February 8, 2011 motor vehicle accident. Accordingly, I now dismiss this Application for Arbitration.

EXPENSES:

The Insurer did not request any costs associated with this Preliminary Issue Hearing. Accordingly, this Application for Arbitration is dismissed without costs.

June 6, 2016

Charles Matheson

Arbitrator

Date