Zahra Bamdadian v. Allstate Insurance Company of Canada, 2016 ONFSCDRS 264

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 264

FSCO A15-002118

BETWEEN:

ZAHRA BAMDADIAN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Arbitrator Paulina Gueller

Heard: By telephone conference on August 17, 2016

Appearances: Ms. Zahra Bamdadian did not participate

Mr. Andrew McKague participated for Allstate Insurance Company of Canada

Issues:

The Applicant, Ms. Zahra Bamdadian, was injured in a motor vehicle accident on September 4, 2010, and sought accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Zahra Bamdadian, 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 Ms. Bamdadian’s Application for Arbitration be dismissed?
Is Allstate entitled to its expenses of this Application for Arbitration?

Result:

Ms. Bamdadian’s Application for Arbitration is dismissed.
Allstate is entitled to its expenses that I have assessed in the amount of $500.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on May 19, 2016, at which Ms. Bamdadian failed to appear.

On May 19, 2016, I sent a letter to Ms. Bamdadian at her last known address to advise her of the missed Pre-Hearing discussion. The letter provided Ms. Bamdadian with an Attendance Notice, setting a date of August 17, 2016 at 9:30 a.m. by telephone conference, to hear the issues identified in the Application for Arbitration. The letter also advised her that should she not contact our office or participate in any further proceedings, I would dismiss her application and consider Allstate’s request for expenses.

The Dismissal

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

As of August 17, 2016, I was unable to contact Ms. Bamdadian, she had yet to contact her legal representative or ADR Chambers as requested, and she had not participated in any of the Arbitration proceedings.

I am satisfied that Ms. Bamdadian was given notice of all of the proceedings related to her Arbitration at her last known address.

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

Ms. Bamdadian bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claims, this Arbitration is dismissed.

EXPENSES:

The relevant criteria for an Arbitrator when awarding expenses to a party, if the Adjudicator is satisfied that the award of expenses is justified, is set out in Rules 75.1 and 75.2 of the DRPC as follows:

The Adjudicator will only consider the criteria referred to in the Expense Regulation found in Section F of the DRPC. These criteria are:

(a) each party's degree of success in the outcome of the proceeding;

(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

In awarding expenses, I am taking into consideration the relevant criteria, which includes the party’s success in the proceedings and the conduct of the party that prolonged the proceeding unnecessarily. Ms. Bamdadian failed to pursue her claim, instruct her counsel, and she failed to attend the Hearing.

Allstate is the successful party and is entitled to its expenses. I consider the time that Allstate’s counsel spent in preparing the responses to the Application for Arbitration, consulting with their client, and attending the Pre-Hearing and the Hearing.

Allstate requested its expenses in the amount of $1,500.00, but did not provide a Bill of Cost or detail of its disbursements.

I find that Allstate was aware that Ms. Bamdadian had lost contact with her counsel and that she did not intend to pursue her Application for Arbitration. Therefore, I find it is reasonable to grant some legal expenses.

Accordingly, I exercise my discretion pursuant subsection 282(11) of the Insurance Act, and order that Ms. Bamdadian pay Allstate expenses that I have assessed at $500.00, inclusive of all fees, disbursements, and HST.

This amount is payable forthwith.

October 3, 2016

Paulina Gueller

Arbitrator

Date