Alex Elivert v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 169

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 169

FSCO A14-009509

BETWEEN:

ALEX ELIVERT

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Irvin H. Sherman, Q.C.

Heard:

In person at ADR Chambers on May 31, 2016

Appearances:

Mr. Alex Elivert did not participate

Mr. Thomas Hughes participated for State Farm Mutual Automobile

Insurance Company

Issues:

The Applicant, Mr. Alex Elivert, was injured in a motor vehicle accident on September 21, 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. Elivert, 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 this Application for Arbitration be dismissed?
Is State Farm entitled to its expenses?

Result:

This Application for Arbitration is dismissed.
State Farm is entitled to its expenses in the amount of $1,500.00.

EVIDENCE AND ANALYSIS:

Despite his being given notice of the Arbitration Hearing, neither Mr. Elivert nor anyone on his behalf attended the Hearing. Mr. Elivert applied for Arbitration on November 25, 2014. The Pre-Hearing discussion in this matter was held on July 9, 2015 at which time the date for this Arbitration Hearing was set for May 31, 2016 to June 2, 2016. A resumption of the Pre-Hearing was held on March 23, 2016 at which time these dates were confirmed.

Mr. Elivert retained legal counsel to act for him with respect to his claim for statutory accident benefits on November 4, 2011. His solicitors brought a Motion to be removed as counsel of record by reason of Mr. Elivert failing to instruct them. On April 5, 2016, Arbitrator Anschell ordered that Rammik Makkar and Gosai Law Professional Corporation be removed as solicitors of record for Mr. Elivert. Arbitrator Anschell thereupon caused Mr. Elivert to be sent a letter by regular and registered mail advising him of his right to seek new counsel and that his Arbitration Hearing would proceed on May 31, 2016. There is no persuasive evidence to show that Mr. Elivert subsequently sought counsel to assist him with his Arbitration claim. On May 9, 2016 a Settlement Officer wrote Mr. Elivert in order to set up a Settlement Conference while noting that his Arbitration Hearing would commence on May 31, 2016. There is no persuasive evidence to show that Mr. Elivert ever sought a Settlement Conference.

Mr. Elivert has had adequate notice of the date for his Arbitration Hearing. He has not done anything about it. He has been dismissive of the process. His Application for Arbitration should be and is hereby dismissed.

EXPENSES:

State Farm has been put to the expense of defending this claim for accident benefits for which it retained counsel who has appeared on its behalf throughout including attendances at the Pre-Hearing discussion, the resumption of Pre-Hearing as well as at this Arbitration Hearing. It also was served notice of the application brought by Mr. Elivert’s former legal counsel to be removed as solicitor of record. I accordingly award its expenses in the amount of $1,500.00.

June 13, 2016

Irvin H. Sherman, Q.C.

Arbitrator

Date