Hawo Halane v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 227

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 227

FSCO A11-002155

BETWEEN:

HAWO HALANE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Alan Mervin, Arbitrator

Heard: By teleconference call on May 2, 2014.

Appearances: No one appearing for Ms. Halane

Waheeda Ekhlas Smith for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Hawo Halane, was injured in a motor vehicle accident on December 18, 2009. She applied for and received statutory 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. Halane 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 Ms. Halane’s application for arbitration be dismissed?
Is State Farm entitled to its expenses of the hearing and if so, in what amount?

Result:

The application for arbitration is dismissed.
I make no award of expenses.

EVIDENCE AND ANALYSIS:

The initial pre-hearing in this matter was held on April 10, 2012. Mr. Cope, legal counsel represented State Farm. Mr. Bona, licensed paralegal, represented the applicant.

The Applicant did not attend. Mr. Bona advised that the firm had lost contact with the Applicant and were unaware of her whereabouts.

The Applicant and her representative appeared at the resumed pre-hearing discussion of June 22, 2012, with Mr. Bona, licensed paralegal, appearing for the Applicant and Mr., Barr, legal counsel, representing State Farm.

A preliminary issue hearing date was set for February, 19, 20 and 21, 2013. The issue in dispute to be determined at the preliminary issue hearing was whether the Applicant’s injuries were directly caused by the accident. Hearing dates for the main hearing were also set for February 10, 11, 12 and 13, 2014.

On February 6, 2013, Insurer, having received correspondence advising that the Applicant was requesting an adjournment, wrote to FSCO and advised in that letter, that the Insurer was opposed to the adjournment request. The Applicant was apparently still in Kuwait receiving treatment, and apparently this was a similar situation to that of the pre-hearing of June 22, 2012, when the Applicant failed to attend for a similar reason.

After considering written submissions from both parties on this contested adjournment application, Arbitrator Bujold adjourned the preliminary issue hearing subject to certain conditions, and ordered that the new dates were to be peremptory to the Applicant when they are set at the upcoming resumption.

At a further resumption of the prehearing discussion in January 2014, the Applicant representative advised that he will advance a motion to be removed as the Applicant representative, having not heard from the Applicant since June 2013, when the Applicant had contacted her representative and forwarded documentation to verify her medical treatment and residency in Kuwait.

At the March 24, 2014 motion for withdrawal heard before me, I allowed the applicant representative to be removed from the record, and I set a date for the hearing of May 2, 2014 to proceed by way of teleconference.

My letter dated March 26, 2014, sent to her last known address on file, specifically stated that a hearing was set for May 2, 2014, and contained a warning in bold letters that should the applicant not appear, her arbitration may be dismissed. That letter and the motion decision were both returned to sender as undeliverable.

A new Notice of Hearing advising of the May 2, 2014 hearing teleconference was then sent to the parties.

The Hearing May 2, 2014:

On May 2, 2014, at 10:00 am, at the commencement of the teleconference hearing, Ms. Waheeda Ekhlas Smith, counsel for State Farm, participated by telephone. I telephoned the Applicant at the last known telephone number on the file but was unable to reach the Applicant.

I waited for approximately 30 minutes, but still could not reach the Applicant via telephone.

The hearing then proceeded in her absence. The Insurer moved to dismiss the Application.

I am satisfied that the Applicant was properly served with notice of this hearing and that every opportunity was given to the Applicant to advance her claim.

Having heard no evidence from the Applicant in support of her claim, I found that the Applicant has failed to meet her onus of proving her claim on a balance of probabilities.

I then granted the Insurer’s motion.

It is not unreasonable to infer from the Applicant’s history, including her purported residency in Kuwait, history of non-participation, lack of communication for over two years, and purported medical condition, that the Applicant had in fact abandoned her arbitration.

Ms. Halane’s Application for Arbitration is dismissed.

EXPENSES:

The delay in this matter was unfortunate due to the Applicant’s alleged medical circumstance.

At the current time, it appears that she has not been heard from in over two years, and it is not known if she is in the country or in fact will return.

While I find that Ms. Halane, having failed to appear on this matter, and not succeeding on the issues in dispute, is disentitled to expenses, under the circumstances in this case, it would not be appropriate to make any expense award in this matter, due to the unknown location of the Applicant, and her unfortunate alleged medical circumstances.

A medical certificate as proof confirming her illness as requested by the Insurer earlier at a pre-hearing, although not actually physically produced, was apparently sent to the Applicant representative in June 2013 who confirmed its receipt and forwarded a copy and forwarded to the Insurer to explain the Applicant’s prior non–appearances.

If, in fact, as was suggested earlier by the Applicant representative, that the Applicant could not appear and make submissions to explain her non-appearance due to her ongoing cancer treatment in Kuwait, it would be most unfair to further burden this Applicant with an expense order in light of her alleged serious illness.

Further, it appears that any order I make with respect to expenses may be unenforceable in any event due to the unknown location and condition of the Applicant.

Therefore, I make no order for expenses in this case.

August 29, 2016

Alan Mervin

Arbitrator

Date