Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 300

FSCO A14-008221

BETWEEN:

ILKER SANCAR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Thérèse Reilly

Heard: In person at ADR Chambers on October 3, 2016

Appearances:

Mr. Ilker Sancar did not participate Mr. John Choe participated for State Farm Mutual Automobile Insurance Company Mr. Jeff Kope attended for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Ilker Sancar, was injured in a motor vehicle accident on October 2, 2012 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 the Applicant, 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:

Is Mr. Sancar entitled to a weekly income replacement benefit in the amount of $400.00 per week for the period from January 8, 2013 to date and ongoing?
Is Mr. Sancar entitled to medical benefits for treatment plans from Health Solutions as follows:

a. $3,560.88, dated November 23, 2012; and,

b. $1,400.00, dated February 13, 2013?

Is Mr. Sancar entitled to medical benefits for treatment plans from Premier Medical as follows:

a. $1,541.60, dated January 23, 2013;

b. $3,183.88, dated May 22, 2013; and,

c. $3,233.88, dated July 15, 2013?

Is Mr. Sancar entitled to the costs of examinations for $2,237.64 for a psychological assessment from Premier Medical as per an OCF-18, dated February 12, 2013; for $2,850.00 for an orthopaedic assessment from New Age as per an OCF-18, dated December 18, 2013; and for funding in the amount of $1,803.13 for an in-home assessment from Sophie Bielawski as per an OCF-18, dated April 23, 2013?
Is Mr. Sancar’s impairment of a nature that it falls within the Minor Injury Guideline?
Is Mr. Sancar entitled to interest?
Is either party entitled to its expenses of the Hearing?

Result:

Mr. Sancar’s Application for Arbitration against State Farm is dismissed.
The Applicant, Mr. Sancar, is to pay State Farm’s expenses in the amount of $2,500.00 (inclusive of all costs, disbursements and taxes).

EVIDENCE AND ANALYSIS:

A Pre-Hearing in this matter was held on October 26, 2015. The Applicant participated. A resumption of the Pre-Hearing proceeded by telephone on November 27, 2015. The Applicant also attended as noted in the Arbitrator’s letter of November 27, 2015. A further resumption of the Pre-Hearing was scheduled for June 10, 2016 at which time a Motion was heard and an Order issued removing the Applicant’s legal representative from the record. By letter, dated June 16, 2016, sent to the Applicant, the Arbitrator confirmed the Order granted and the fact that the Applicant was now self-represented. The letter confirmed that the date of the Hearing remained as scheduled for October 3, 4, 5, 6, 2016 at 10:00 a.m. at the offices of ADR Chambers.

The Arbitration Hearing in this case proceeded as scheduled at 10:00 a.m. on October 3, 2016 at the offices of ADR Chambers. The Applicant was served with written notice of the Hearing sent by ADR Chambers by regular and registered mail to his last known address shown in the records of ADR Chambers. The notices were returned undelivered. Mr. John Choe, representative for the Insurer, informed me at the Hearing that the Insurer had served its document brief on the Applicant. A process server attended at the last known address of the Applicant and spoke to an individual at the address who refused to take the documents. The process server left the documents at the front door. The process server noted that the documents were retrieved from the porch.

Hearing

At the Hearing, on October 3, 2016, the Applicant did not attend and did not participate. A Turkish interpreter was present and available to provide interpretation services for the Applicant. We waited for 30 minutes. The Hearing proceeded in the Applicant’s absence pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“the Code”). I was also unable to contact the Applicant by telephone at the telephone number contained in the records of ADR Chambers.

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.

I am satisfied that Mr. Sancar was given notice of the Hearing at his last known address contained in the records of the Dispute Resolution Group (including ADR Chambers) as required by Rule 5.7 of the Code. Mr. Sancar has known about the Hearing date for at least 12 months.

Mr. Choe brought a Motion for a dismissal of the Application for Arbitration on the basis of the non-attendance at this proceeding.

Mr. Sancar bears the onus of proving entitlement to the benefits he claimed. Because he did not appear at the Hearing and no evidence was presented to support his claims, this Application for Arbitration is dismissed.

EXPENSES:

State Farm requested its expenses in respect of this Arbitration. I find that State Farm, as the “successful party” within the meaning of subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664, is entitled to its expenses.

State Farm at the Hearing requested $5,000.00 in expenses but made no submissions thereon. I requested a Bill of Costs to support the claim for the expenses. A Bill of Costs was submitted following the Hearing showing actual fees totaling $13,918.78, comprised of 77 hours of legal counsel fees plus disbursements in the amount of $529.07 (including HST). A second Bill of Costs was submitted for $2,522.73, reflecting a further 9.5 hours for legal counsel fees for attendance at an Examination Under Oath in 2013.

As the successful party, State Farm is entitled to its expenses of this Hearing. I do not believe, however, that this matter warrants a line-by-line examination of the Insurer’s expenses. The Insurer led no evidence on expenses at the Hearing. The general approach with respect to fees is to take a pragmatic, broad-strokes approach, with a view to fixing an amount that includes fees, disbursements and taxes that is reasonable.

I note from the information on file that it was apparent that the Applicant would not attend the Hearing and this would minimize the level of participation at the Hearing. The Applicant did not file any documents for the Hearing. By letter addressed to ADR Chambers, dated September 23, 2016, it was known to the Insurer that the Applicant could not be located for the purpose of scheduling a settlement conference to take place before the Hearing.

I fix the Insurer’s expenses at $2,500.00. I find this amount to be reasonable given the time required to review the file, obtain instructions, prepare and file a response, prepare and attend two Pre-Hearing discussions and a Motion to remove counsel, and attend the Hearing.

Accordingly, and pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, Mr. Sancar is ordered to pay State Farm’s expenses in the amount of $2,500.00 (inclusive of all costs, disbursements and taxes).

November 14, 2016

Thérèse Reilly Arbitrator

Date