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

Neutral Citation: 2016 ONFSCDRS 168

FSCO A14-002265

BETWEEN:

FAZAL AHMAD ALOMI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Marcel D. Mongeon

Heard: In person at ADR Chambers on April 25, 2016 and May 24, 2016

Appearances: Mr. Fazal Ahmad Alomi did not participate Ms. Jennifer Reid participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Fazal Ahmad Alomi, was injured in a motor vehicle accident on June 20, 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 Mr. Alomi, through his 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 Mr. Alomi’s Application for Arbitration be dismissed?
Is State Farm entitled to its expenses in preparing for and attending the Arbitration proceedings from Mr. Alomi and, if so, in what amount?

Result:

The Applicant’s Application for Arbitration is dismissed.
State Farm is entitled to its expenses in preparing for and attending the Arbitration proceedings in the amount of $2,500.00.

EVIDENCE AND ANALYSIS:

Chronology

Subsequent to a Pre-Hearing discussion held on June 8, 2015, a Hearing in this matter was scheduled for April 25 to 27, 2016. At that time, the Applicant was represented.

By letter, dated April 14, 2016, the Applicant’s representative requested to be removed from the record in this matter. I considered the representative’s request at the outset of the Hearing on April 25, 2016 at 10:00 a.m. The Applicant was not present although I was satisfied that he had notice of his representative’s request. I ordered the removal of the Applicant’s representative on April 25, 2016.

Because I was not satisfied that the Applicant had notice that if his representative was removed from the record, the matter could be dismissed, I set an adjournment date of May 24, 2016 at 10:00 a.m. In addition, on April 25, 2016, I sent a letter to the Applicant at his last two known addresses by regular and registered mail to advise him that he was no longer represented and that in order to proceed with his matter, he would have to show up in person at the adjourned Hearing date. The letter provided the Applicant with an Attendance Notice, to hear the issues identified in the Application for Arbitration. The letter also advised him that should he not contact our office or participate in any further proceedings, I would dismiss his Application and consider State Farm’s request for expenses.

The Dismissal

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

Since my letter to the Applicant of April 25, 2016, no information or communication has been received from the Applicant of his intention to continue the Application.

I am satisfied that the Applicant was given notice of all of the proceedings related to his Arbitration at his last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“the DRPC”), the Arbitration Hearing proceeded in his absence.

The Applicant bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claims, this Arbitration is dismissed.

EXPENSES:

On dismissing this action, State Farm’s representative made a request to have me assess the expenses of this proceeding against the Applicant. I was provided with the following information:

Preparation time for State Farm’s lead lawyer, Mr. Darrell March, for the original Hearing scheduled for April 25, 2016 was in excess of 60 hours;
Preparation time for State Farm’s junior lawyer, Ms. Jennifer Reid, for the original Hearing was in excess of 10 hours;
Attendance time for Mr. Darrell March on April 25, 2016 was at least 2 hours;
Attendance time for Mr. Jennifer Reid on April 25, 2016 and May 24, 2016 was at least 4 hours;
All of the foregoing amounts of time are reasonable when considered with the issues in dispute in this proceeding and the fact that the Hearing was originally estimated for three days;
Mr. March’s legal aid rate is $101.81 and Ms. Reid’s legal aid rate is $91.62 given their experience and years of practice; and
Although State Farm’s representative believed that expenses in this matter should be assessed in excess of $6,000.00 given the time expended, State Farm was prepared to have me fix expenses at $2,500.00.

Based on the criteria in Rule 75.2 of the DRPC and especially criteria (d) and (e) thereof, I am satisfied that an order of expenses against the Applicant is warranted.

Based on Rule 78 of the DRPC and Section F – Expense Regulation of the DRPC, I am satisfied that an award of expenses of $2,500.00 is appropriate in this case against the Applicant.

June 13, 2016

Marcel D. Mongeon Arbitrator

Date