Vasanthakumar v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 23

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 23

FSCO A13-013505

BETWEEN:

VASANTHADEVI VASANTHAKUMAR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Arbitrator Cindy Dymond

Heard:

By telephone conference call on November 3, 2015

Appearances:

Ms. Vasanthadevi Vasanthakumar did not participate

Mr. Gabriel Flatt participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Vasanthadevi Vasanthakumar, was injured in a motor vehicle accident on October 16, 2010 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. Vasanthakumar, 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 Preliminary Issue Hearing are:

Should Ms. Vasanthakumar’s Application for Arbitration be dismissed?
Should State Farm be entitled to its expenses in respect of this Arbitration?

Result:

Ms. Vasanthakumar’s Application for Arbitration is dismissed.
State Farm is entitled to its expenses in the amount of $500.00.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing was originally scheduled in this matter for November 25, 2014 and was adjourned due to the Applicant being unavailable. The Pre-Hearing was re-scheduled for February 5, 2015 and was adjourned the day prior due to the Applicant’s again being unavailable. The Pre-Hearing was re-scheduled for June 11, 2015. At that Pre-Hearing, which was conducted in Toronto, the contact from State Farm and Counsel for State Farm both travelled from Guelph to attend in person. The Applicant did not attend and offered no explanation. A representative from Zayouna Law Firm attended on behalf of Ms. Vasanthakumar and indicated that Zayouna had lost contact with their client. The matter was scheduled to resume on September 24, 2015 by teleconference to give Zayouna Law Firm sufficient time to try to re-establish contact with their client. At the resumption on September 24, 2015, Zayouna Law Firm established that they had lost contact with Ms. Vasanthakumar and they were removed as representative of record for Ms. Vasanthakumar. In the Pre-Hearing resumption discussion on September 24, 2015, Mr. Flatt brought a Motion to dismiss the present claim. A Preliminary Issue Hearing was scheduled to take place by teleconference November 3, 2015 to deal with that Motion. A Preliminary Issue Hearing was held on November 3, 2015, and Ms. Vasanthakumar again failed to appear or to request an adjournment.

The Dismissal

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

As of the date of the Preliminary Issue Hearing, I was unable to contact Ms. Vasanthakumar, she had yet to contact her legal representative when they were on the record or ADR Chambers as requested in several notices, and she had not participated in any of the Arbitration proceedings.

Notices of all scheduled Pre-Hearings were sent to Ms. Vasanthakumar including peremptory notices. No response was ever received and the Applicant did not participate in any of the scheduled meetings or teleconferences. Nor did she request an adjournment.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Preliminary Issue Hearing proceeded in her absence. Ms. Vasanthakumar bears the onus of proving entitlement to the claimed benefits. Since she did not appear at any of the proceedings and no evidence was presented to support her claims, this Arbitration is dismissed.

EXPENSES:

Mr. Flatt requested his expenses in the amount of $500.00 due to the number of scheduled and convened Pre-Hearing discussions State Farm attended and prepared for in this matter. I award State Farm expenses in the amount of $500.00.

January 18, 2016

Cindy Dymond

Arbitrator

Date