Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 163

FSCO A15-006058

BETWEEN:

YONATAN MEKONNEN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Richard Quan

Heard: May 27, 2016, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mr. Mekonnen Michael Smith for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Yonatan Mekonnen, was injured in a motor vehicle accident on March 22, 2014. He applied for statutory accident benefits from his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose between Mr. Mekonnen and State Farm concerning his entitlement to accident benefits. The parties were unable to resolve their disputes through mediation, and Mr Mekonnen applied for arbitration at the Financial Services Commission of Ontario, (“FSCO”), under the Insurance Act,² by way of Application for Arbitration dated August 19, 2015.

The issues in this hearing are:

Is Mr Mekonnen entitled to an income replacement benefit at the rate of $400.00 per week from November 26, 2014 onwards?
Is Mr. Mekonnen entitled to a medical benefit for treatment and services incurred at and recommended by Pro Life Wellness Centre as follows:

a. For physiotherapy treatment, chiropractic treatment and massage therapy in the amount of $2,847.38 from a Treatment and Assessment Plan dated July 5, 2014;

b. For physiotherapy treatment in the remainder amount of $61.41 from a Treatment and Assessment plan dated November 25, 2014;

c. For physiotherapy treatment, chiropractic treatment and massage therapy in the amount of $2,591.62 from a Treatment and Assessment Plan dated February 26, 2015?

Is Mr. Mekonnen entitled to payments for the following cost of examinations prepared by and recommended by Pro Life Wellness Centre:

a. The cost of an In-Home Assessment in the amount of $1,460.00 from a Treatment and Assessment Plan dated August 27, 2014;

b. The cost of a Psychological Assessment in the amount of $2,210.68 from a Treatment and Assessment Plan dated September 13, 2014?

Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Mekonnen?
Is Mr. MeKonnen entitled to interest for the overdue payment of benefits?
Which party is entitled to its expenses?

Result:

All claims pursued by Mr. Mekonnen are dismissed.
State Farm is awarded its expenses for this proceeding in the amount of $500.00 inclusive of HST.

Background:

A pre-hearing discussion in this case was convened by me on December 21, 2015, at 11:30 a.m., at the offices of the Financial Services Commission of Ontario. A resumption of the pre-hearing discussion took place by telephone conference call on January 22, 2016 at 3:00 p.m. A further resumption of the prehearing discussion and a motion removing the law firm of Fireman Steinmetz from the record took place by telephone conference call on March 18, 2016, at 2:30 p.m. On all occasions, Mr. Mekonnen did not attend and did not participate in the proceedings.

Mr. Mekonnen had been represented by Counsel up to March 18, 2016; however, Mr. Kirupa, a lawyer at the firm of Fireman Steinmetz advised that his firm had not been able to contact Mr. Mekonnen since well before the first pre-hearing discussion notwithstanding various efforts to do so by mail and by telephone. For the reason that there has been a breakdown in the solicitor-client relationship, the law firm of Fireman Steinmetz requested a motion to be removed from the record by letter dated February 11, 2016. On March 18, 2016, I made an order granting this request for removal as the motion was un-opposed.

A hearing date of May 27, 2016 was set with the proceeding to commence at 10:00 a.m. at the offices of the Financial Services Commission of Ontario. By my letter dated March 22, 2016, I advised Mr. Mekonnen that, “where notice of hearing has been sent to a party and a party does not attend, the Arbitrator may proceed with the hearing” and can award expenses “in the party’s absence or without the party’s participation.” Formal notice of the hearing, along with all other pieces of correspondence, have been sent by mail to Mr. Mekonnen’s last known address; no letters have been returned to FSCO. Rule 9.1(c) of the Dispute Resolution Practice Code provides that FSCO is entitled to rely upon the last known address, telephone number and electronic transmission (if any) contained in its records.

The Hearing of May 27, 2016

Staff of FSCO and I attended the hearing room and the lobby area at 10:00 a.m. on May 27, 2016. Mr. Smith along with his client from State Farm were present. I called a recess until 10:30 a.m. to allow time in case Mr. Mekonnen was running late. I checked with the receptionist and other staff to see if Mr. Mekonnen had attempted to contact FSCO; there was no indication that he was on the floor or had contacted FSCO in any way.

At 10:30, a.m., I attended the hearing room once again and commenced the hearing in Mr. Mekonnen’s absence. There was no evidence adduced by or on behalf of Mr. Mekonnen. Mr. Smith brought a motion to have the claims dismissed on the grounds that there was no evidence in support of the claims being made and that Mr. Mekonnen did not even appear on his own behalf to present his claims.

To my knowledge, the Applicant has been properly advised of this hearing and all other matters before it. Despite being provided many opportunities to take part in the process through the various pre-hearing discussions that have taken place, Mr. Mekonnen has made no contact with FSCO, his former lawyer, or his insurance company. No evidence was presented in support of his claims. The onus is on Mr. Mekonnen to prove entitlement to the benefits he claims; he has not done so. His claims are dismissed.

EXPENSES:

Mr. Smith asked for State Farm’s expenses on the basis that the Applicant’s failure to take part in the Arbitration process had unduly prolonged the proceedings. This is a criterion that I can consider in awarding expenses.³ Mr. Smith suggested that a reasonable amount of $500.00 should be set for expenses in this matter.

In considering that there has been two resumptions of the pre-hearing discussion precipitated by the Applicant’s failure to participate in the Arbitration process, these proceedings have been effectively prolonged by Mr. Mekonnen’s inactivity and silence. State Farm has been put to unnecessary expense. Taking into account the billable time spent, preparation time, and time for attendance at pre-hearing discussions and at this hearing, I find that the sum of $500.00 is reasonable in the circumstances.

Accordingly, I fix State Farm’s expenses at $500.00 inclusive of HST, pursuant to subsection 282(11) of the Insurance Act.

June 9, 2016

Richard Quan Arbitrator

Date