Neutral Citation: 2016 ONFSCDRS 16 FSCO A13-012809

BETWEEN:

FOWSIA DUHULOW Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Chuck Matheson

Heard: In person at ADR Chambers on October 19, 2015

Appearances: Ms. Fowsia Duhulow did not attend Mr. Jonathan Schrieder attended for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Fowsia Duhulow, was injured in a motor vehicle accident on March 20, 2010. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated some Medical Benefits in 2010 and Caregiver, Attendant Care, and Housekeeping and Home Maintenance Benefits in 2011. The parties were unable to resolve their disputes and Ms. Duhulow applied for mediation and 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 the Applicant's Application for Arbitration be dismissed?
Is the Applicant liable to pay State Farm's expenses in respect of this Arbitration?

Result:

The Applicant's Application for Arbitration is dismissed, forthwith.
The Applicant is not liable to pay State Farm's expenses in respect to this Arbitration.

EVIDENCE AND ANALYSIS:

Background

This Hearing was scheduled for a three-day Hearing, commencing October 19, 2015, on December 16, 2014.

Applicant's Counsel had lost contact with the Applicant as early as January 16, 2015, which is evidenced in a Pre-Hearing letter, dated September 11, 2015. Applicant's Counsel did send notice to the Applicant of her firm's intent to be removed from the record. This Motion was granted on September 17, 2015.

Hearing

Insurer's Counsel waited for 15 minutes before asking for the Hearing to commence, which was granted. Counsel pointed out that the Applicant was not present nor was Counsel representing her.

At this point, Insurer's Counsel moved that I dismiss the Application for Arbitration on the grounds that there was no evidence the Applicant had fulfilled her burden of proof on the issues being claimed in the Application for Arbitration or as outlined in subsequent Pre-Hearing letters.

Insurer's Counsel then requested that a nominal fee for costs be assessed, as the Insurer admittedly did not provide me with its outline of costs and expenses.

I reserved on my decision and adjourned the proceedings at about 10:30 a.m.

Approximately 45 minutes after the proceedings were adjourned, the Applicant appeared at the 180 Duncan Mill Road office of ADR Chambers, at which time I was informed. The Applicant was sent home by staff and told that correspondence would be sent to her about this matter.

I sent a letter that requested that she provide reasons why I should grant new Arbitration dates, and reasons for her lateness and proof of same. I asked that this be provided to me before the end of the business day of November 19, 2015.

On November 19, 2015, I received a letter from a paralegal. The paralegal made it clear that neither he nor his firm represented the Applicant. The paralegal suggests, without proof of same, that the Applicant could not find another law firm to take on her case with such short notice, as she tried many firms.

Further, the paralegal suggests that a consented adjournment was sought with opposing Counsel by him, prior to the Hearing, which was met with great resistance, again without proof of said correspondence.

Finally, the paralegal suggests that the Applicant did appear in a timely manner, but at the wrong ADR Chambers office. The Applicant allegedly appeared at the 4101 Yonge Street offices on the date of the Hearing, thus the reason for being late.

The Applicant now requests a new date for a Hearing.

Reasons

In a Pre-Hearing letter, dated September 11, 2015, the Pre-Hearing Arbitrator states that the e-mail records show that the Applicant had known of her Counsel's intention to be removed from the record as early as January 16, 2015.

In the Pre-Hearing letter of September 17, 2015, the Arbitrator carefully explained the obligations, responsibilities and consequences of being self-represented at an Arbitration Hearing. The Arbitrator also gave specific directions to the Applicant in terms of contacting the Insurer and ADR Chambers and how to request an adjournment of the Hearing.

There is no evidence before me that the Applicant acted on any of these recommendations.

I personally checked with the staff at ADR Chambers and had the Applicant appeared at the wrong location, they would have contacted me directly and informed me of same and not allowed me to start the proceedings until her arrival at the correct location. No staff person at either location recalled such an event happening on October 19, 2015, as this would have been a very rare event. Again, no proof of the people she spoke to or when she spoke to them. A simple parking receipt or TTC receipt would have sufficed as evidence of effort and attendance.

In light of no evidence being produced by the Applicant which would show any positive objective effort to advance her claim in a positive manner, coupled with a manufactured story of being at the wrong location, I am compelled for the above reasons, to find for the Insurer. Therefore I now find and order that the Applicant's Application for Arbitration be dismissed, forthwith.

EXPENSES:

In regards to costs, the Insurer also has not presented me with any evidence as to the full effort exerted by the Insurer in this case. I am not compelled to award any costs in this matter.

Therefore, I now find and order that the Applicant is not liable to pay any of State Farm's expenses in respect to this Arbitration.

January 15, 2016

Chuck Matheson Arbitrator

Date

Financial Services Commission of Ontario