Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 293
FSCO A14-002102
BETWEEN:
KRYSTYNA STARENCZAK
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Arbitrator Benjamin Drory
Heard:
In person at ADR Chambers on October 24, 2016
Appearances:
Ms. Naveen Baig for Ms. Krystyna Starenczak
Mr. Bruce Chambers and Mr. Mike Klein for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Ms. Krystyna Starenczak, was injured in an accident on October 31, 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. Starenczak, 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 Zayouna Law Firm be permitted to be removed from the record as Ms. Starenczak’s counsel of record?
Should Ms. Starenczak’s Application for Arbitration be dismissed?
Should State Farm be granted expenses in respect of the Application for Arbitration?
Result:
Zayouna Law Firm is removed as counsel of record for Ms. Starenczak.
Ms. Starenczak’s Application for Arbitration is dismissed.
State Farm is granted $1,000.00 in expenses in respect of the Application for Arbitration.
EVIDENCE AND ANALYSIS:
Prior to the Hearing, in September 2016, Zayouna Law Firm requested to be removed from the record as counsel for Ms. Starenczak, citing a breakdown in the solicitor-client relationship. Given the proximity of this request to the Hearing, the Pre-Hearing Arbitrator opted to leave this determination to the Hearing Arbitrator.
Ms. Starenczak did not attend the Hearing. Ms. Baig, on behalf of Zayouna Law Firm, then reiterated her firm’s request to be removed from the record, and provided further written material in support of the request. State Farm did not oppose the Motion.
I am satisfied that there was a breakdown in the solicitor-client relationship, as evidenced by Ms. Starenczak’s counsel’s inability to communicate with Ms. Starenczak, and I am satisfied that Zayouna Law Firm took the necessary and appropriate steps to try to contact her.
Therefore, I ordered that Zayouna Law Firm be removed from the record as Ms. Starenczak’s legal representative.
State Farm requested that Ms. Starenczak’s Application for Arbitration be dismissed, with costs. No submissions were provided on behalf of Ms. Starenczak.
Based on the evidence provided, I am satisfied that Ms. Starenczak was notified of the Hearing and all proceedings to date. I am also satisfied that Ms. Starenczak knew that she must attend, and that failure to attend could result in State Farm bringing a Motion to dismiss the Application for Arbitration on a with-costs basis. Of note, State Farm indicated that Ms. Starenczak personally attended the Pre-Hearing of October 19, 2015, at which the Hearing dates commencing October 24, 2016 were set.
Ms. Starenczak had the onus of proof to establish her entitlement to the claims in her Application for Arbitration, and her failure to attend accordingly meant that she failed to meet this onus.
Therefore, Ms. Starenczak’s Application for Arbitration is dismissed.
EXPENSES:
State Farm orally requested expenses in the amount of $1,000.00 respecting this matter, given the dismissal of the claims. No submissions were received from Ms. Starenczak. I find the amount requested reasonable, and it is well within the range of awards typically seen in such cases. It is in accordance with the provisions of the Dispute Resolution Practice Code and Section 282(11) of the Insurance Act.
Accordingly, I award State Farm $1,000.00 respecting its expenses in this matter, which Ms. Starenczak must pay to State Farm.
November 7, 2016
Benjamin Drory
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 293
FSCO A14-002102
BETWEEN:
KRYSTYNA STARENCZAK
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Zayouna Law Firm is removed as counsel of record for Ms. Starenczak.
Ms. Starenczak’s Application for Arbitration is dismissed.
State Farm is granted $1,000.00 in expenses in respect of the Application for Arbitration.
November 7, 2016
Benjamin Drory
Arbitrator
Date
Footnotes
- Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “new SABS”) came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “old SABS”) shall be paid under the new SABS, but in amounts determined under the old SABS.