Nagalingam v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 277

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 277

FSCO A15-007719

BETWEEN:

SIVAGUNAM NAGALINGAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Alan G. Smith

Heard: In person at ADR Chambers on September 21, 2016

Appearances: Mr. Sivagunam Nagalingam did not participate

Ms. Rachelle Villanueva participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Sivagunam Nagalingam, was injured in a motor vehicle accident on October 18, 2013 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 Mr. Nagalingam, through his 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 Application for Arbitration be dismissed?
Is State Farm entitled to its expenses in preparing for and attending the Arbitration proceedings from Mr. Nagalingam and, if so, in what amount?

Result:

The Applicant’s Application for Arbitration is dismissed.
State Farm is not entitled to its expenses.

EVIDENCE AND ANALYSIS:

BACKGROUND

A Pre-Hearing conference with regard to this Application for Arbitration was held on June 27, 2016. Subsequent to the Pre-Hearing discussions a Pre-Hearing letter was issued, scheduling an Arbitration Hearing for September 21, 2016.

On June 27, 2016, an Order was issued removing The Law Offices of Meleni David as the Applicant’s counsel of record, due to the Applicant having requested that the solicitor-client relationship be terminated. Also on June 27, 2016, a Pre-Hearing letter was prepared and sent to the Applicant, by both registered and regular mail, advising Mr. Nagalingam of the following:

HEARING:

The Arbitration Hearing in this case is scheduled for Wednesday, September 21, 2016, at 2:00 p.m. the offices of ADR Chambers at 180 Duncan Mill Road, 4th Floor, Toronto, ON, M3B 1Z6.

State Farm has been advised not to prepare for a contested hearing on this matter. In the event that the applicant attends on that date, with or without representation, the hearing will not proceed and the appointment will be converted into a resumption of the pre-hearing discussion. However, in the event that Applicant does not attend, as noted above, the hearing may proceed in his absence. The Applicant’s Application for Arbitration may be administratively closed or dismissed and the State Farm’s expenses of the Arbitration proceeding may be awarded against Mr. Nagalingam.

Where notice of hearing has been sent to a party and a party does not attend, 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 of the proceeding. This letter shall serve as sufficient notice of hearing.

Neither Mr. Nagalingam, nor a representative, attended on the re-scheduled Hearing date of September 21, 2016. Nor did the Applicant contact ADR Chambers. No submissions were received by ADR Chambers from Mr. Nagalingam. As a result, State Farm asked that I dismiss the Application for Arbitration and award expenses for its time wasted in defending the Application.

ANALYSIS

Dismissal of the Application for Arbitration

I am satisfied that the Applicant had been properly notified of all proceedings to date, including the Hearing scheduled for September 21, 2016. I am also satisfied that the Applicant was properly notified that that his failure to participate in the proceedings would result in State Farm bringing a Motion to dismiss his Application for Arbitration.

The Applicant has the onus of proof to establish his entitlement to accident benefits under his Application for Arbitration, and his failure to attend and participate accordingly means that he has failed to meet this onus. I find that given Mr. Nagalingam’s failure to participate in this Hearing process and the resulting impossibility of success of his Application for Arbitration, State Farm is entitled to an Order dismissing the Application for Arbitration filed by Mr. Nagalingam.

I am relying on section 23 of the Statutory Powers Procedure Act,² which grants adjudicators, including Arbitrators, a wide power, including dismissal, to control the process and prevent an abuse of that process. Moreover, Mr. Nagalingam bears the onus of proving entitlement to the claimed benefits. He did not appear at the Hearing and no evidence was presented to support his claims. Therefore, I find all of the above reasons are sufficient to dismiss the Application for Arbitration.

EXPENSES:

On September 21, 2016, I requested that Insurer’s counsel provide me with a breakdown of counsel’s hours spent defending the Application for Arbitration at the applicable hourly rates, in order to justify State Farm’s request for an award of expense in its favour. As of the date of these reasons, I have received nothing from counsel. Therefore, I decline to award expenses in this matter.

October 17, 2016

Alan G. Smith Arbitrator

Date