Neutral Citation: 2016 ONFSCDRS 194

FSCO A14-001363

BETWEEN:

AMINA MOHAMED Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on June 13, 2016

Appearances:

Ms. Sarah Brown for Ms. Amina Mohamed Ms. Lisa Quan for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Amina Mohamed, was injured in an accident on June 25, 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 Ms. Amina Mohamed, through her 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 the Applicant’s counsel be allowed to remove herself as counsel of record for the Applicant?
Should the Applicant’s Application for Arbitration be dismissed?
Should the Insurer be granted costs or expenses in respect of the Application for Arbitration?

Result:

The Applicant’s counsel is removed as counsel of record for the Applicant.
The Applicant’s Application for Arbitration is dismissed.
The Insurer is granted $1,452.61 in expenses in respect of the Application for Arbitration.

EVIDENCE AND ANALYSIS:

Background

The Arbitration Hearing in this matter was scheduled for June 13, 2016 at the ADR Chambers offices located at 180 Duncan Mill Road, Toronto. Ms. Lisa Quan, counsel for State Farm, attended as did Ms. Sarah Brown who was counsel of record for the Applicant. The Applicant failed to attend.

After waiting for a period of time, the Applicant’s counsel made a Motion to remove herself from the record as counsel for the Applicant. Further, State Farm requested that this Application for Arbitration be dismissed on a with cost basis in the amount of $1,452.61.

Decision

Motion to be Removed from the Record

During the Hearing, it was brought to my attention that the Applicant’s Counsel had lost contact with her client despite diligent efforts to contact her by telephone, in writing and in person.

As a result, Ms. Sarah Brown made a Motion to remove herself from the record as representative for the Applicant.

State Farm did not oppose.

I am satisfied that there has been a breakdown in the solicitor/client relationship, as evidenced by Applicant’s counsel’s inability to communicate with, or receive instructions from the Applicant. I am satisfied that Applicant’s Counsel has taken the necessary steps to contact her client.

Therefore, I hereby order Applicant’s Counsel, Ms. Sarah Brown, be removed from the record as Applicant’s legal representative.

Dismissal

Based on the evidence provided, I am satisfied that the Applicant was notified of the Hearing and all proceedings to date. I am also satisfied that the Applicant knew that she must attend and that failure to attend could result in State Farm bringing a Motion to dismiss the Application for Arbitration on a with cost basis, but she chose otherwise

The Applicant has the onus of proof to establish her entitlement to her Application for Arbitration and her failure to attend accordingly means that she has failed to meet this onus.

Therefore, I am dismissing this Application for Arbitration with costs awarded against the Applicant. The awarded costs against the Applicant must be paid to the Insurer within 60 days of this Hearing. Further, the Applicant cannot file or commence any future claims against the Insurer until the outstanding amounts have been paid to the Insurer.

EXPENSES:

Ms. Quan has requested expenses in this matter as a result of the dismissal of the Applicant’s Application for Arbitration. I am prepared to grant the Insurer their expenses in the amount of $1,452.61 as per the legal aid tariff rate which is in accordance with the provisions of the Dispute Resolution Practice Code and Section 282(11) of the Insurance Act.

July 18, 2016

Jeff Musson Arbitrator

Date

Financial Services Commission of Ontario