Neutral Citation: 2016 ONFSCDRS 271 FSCO A13-003251

BETWEEN:

KEERTHIKA SURESHKUMAR Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Paulina Gueller

Heard: By written submissions due September 2, 2016

Appearances: Mrs. Keerthika Sureshkumar did not participate Ms. Erin Morgan participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mrs. Keerthika Sureshkumar, was injured in a motor vehicle accident on July 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 Mrs. Sureshkumar, 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 Motion are:

Should Mrs. Sureshkumar’s Application for Arbitration be dismissed?
Is State Farm entitled to its expenses in preparing for the Arbitration process?

Result:

Mrs. Sureshkumar’s Application for Arbitration is dismissed.
State Farm is entitled to its expenses that I have assessed in the amount of $750.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Dismissal of the Claim

Mrs. Sureshkumar submitted an Application for Arbitration on March 12, 2013. She did not attend any of the three Pre-Hearings held before me on July 28, 2015, February 17, 2016 and July 20, 2016, nor did she respond to the written Motion.

On September 17, 2014, I granted Mr. Nterekas’s Motion request to be removed as counsel of record for Mrs. Sureshkumar.

At the Pre-Hearing held on July 20, 2016, State Farm brought a Motion requesting Mrs. Sureshkumar’s Application for Arbitration be dismissed and provided me with a copy of the Motion and Statement of Service, showing that Mrs. Sureshkumar was served on July 5, 2016.

By letter, dated July 20, 2016, sent by regular and registered mail to Mrs. Sureshkumar’s address in our records, I informed her that State Farm brought a Motion to dismiss the Application for Arbitration and that I scheduled a Motion to be heard in writing.

I also advised Mrs. Sureshkumar that if she failed to respond the Insurer’s submissions by September 2, 2016, I could assume that she had no interest in proceeding with her Application for Arbitration and I may close or dismiss the proceeding without further notice and State Farm’s expenses could be awarded against her, pursuant Rules 68.1 and 68.2 of the Dispute Resolution Practice Code (“DRPC”).

In addition, I adjourned sine die the Hearing scheduled for September 19, 2016, until a decision was made on the Motion brought by the Insurer of whether this Application for Arbitration should be dismissed.

I am satisfied that Mrs. Sureshkumar was given notice of all of the proceedings related to her Application for Arbitration at her last known address complying with the requirements of Rule 9.1(c) of the DRPC and section 6 of the Statutory Power and Procedures Act. Notwithstanding the notices and letters, Mrs. Sureshkumar did not attend the three Pre-Hearings held, or provide written submissions in response to the Motion.

Rule 37.9 of the DRPC states:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Rule 68.1 and 68.2 of the DRPC state:

68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

Pursuant Rule 37.9 of the DRPC, all the stages of this Arbitration process proceeded in Mrs. Sureshkumar’s absence. Mrs. Sureshkumar is responsible to establish her entitlement to her claim. She did not attend any of the three Pre-Hearings and she did not respond to the Motion brought by the Insurer requesting the dismissal of the Application for Arbitration. Therefore, I conclude that she has no interest in pursuing her Application for Arbitration by abandoning it and that this proceeding is frivolous.

All the above mentioned reasons suffice to dismiss Mrs. Sureshkumar’s Application for Arbitration, pursuant Rule 68.1 of the DRPC.

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 proceedings unnecessarily. Mrs. Sureshkumar failed to pursue her claim, instruct her counsel, respond to the Motion and failed to attend all of the scheduled proceedings.

State Farm is the successful party and is entitled to its expenses. I consider the time that State Farm’s counsel spent in preparing the responses to the Application for Arbitration, the Motion to dismiss the claim, consulting with their client, and attending three Pre-Hearings.

State Farm requested its expenses but did not provide a Bill of Costs or detail of its disbursements.

I find that State Farm was aware that Mrs. Sureshkumar had lost contact with her counsel and that she did not intend to pursue her Application for Arbitration. Therefore, I accept that it is reasonable to grant some legal expenses.

Accordingly, I exercise my discretion pursuant subsection 282(11) of the Insurance Act, and order that Mrs. Sureshkumar pay State Farm expenses that I have assessed at $750.00, inclusive of all fees, disbursements, and HST.

This amount is payable forthwith.

October 17, 2016

Paulina Gueller Arbitrator

Date

Financial Services Commission of Ontario