Eljan Garayev v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 307

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 307

FSCO A13-009699

BETWEEN:

ELJAN GARAYEV

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Jeff Musson

Heard:

In person at ADR Chambers on November 9, 2016

Appearances:

Ms. Sarah Brown for Mr. Eljan Garayev

Mr. Cary Schneider for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Eljan Garayev, was injured in an accident on March 9, 2011 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. Eljan Garayev, 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 counsel, Ms. Sarah Brown, be allowed to remove herself as counsel of record for the Applicant?
Should the Applicant’s Application for Arbitration be dismissed?
Should the Insurer be granted costs or expenses in respect of the Application for Arbitration?

Result:

The Applicant’s Counsel, Ms. Sarah Brown, is removed as counsel of record for the Applicant.
The Applicant’s Application for Arbitration is dismissed.
The Insurer is granted $2,500.00 in expenses in respect of the Application for Arbitration.

EVIDENCE AND ANALYSIS:

BACKGROUND

The Arbitration Hearing in this matter was scheduled for November 9, 2016 at the offices of ADR Chambers, located at 180 Duncan Mill Road in Toronto. Mr. Cary Schneider, counsel for State Farm, attended, as did Ms. Sarah Brown who was counsel of record for the Applicant. Ms. Caryl Baillie attended on behalf of State Farm. The Applicant failed to attend.

After waiting for a period of time, the Applicant’s counsel made a Motion to remove herself from the record as counsel for the Applicant. Ms. Brown stated that she had lost contact with her client despite diligent efforts to contact him by telephone, in writing and in person. State Farm did not oppose. Further, State Farm requested that this Application for Arbitration be dismissed on a with cost basis in the amount of $2,500.00.

DECISION

Removal from the Record

I am satisfied that there has been a breakdown in the solicitor/client relationship, as evidenced by Applicant’s Counsel’s inability to communicate with, or receive instructions from, the Applicant. I am satisfied that Applicant’s Counsel has taken the necessary steps to contact her client.

Therefore, I hereby order Applicant’s Counsel, Ms. Sarah Brown, be removed from the record as the Applicant’s legal representative.

Dismissal

Based on the evidence provided, I am satisfied that the Applicant was notified of the Hearing and all proceedings to date. I’m also satisfied that the Applicant knew that he must attend, and failure to attend could result in State Farm bringing a Motion to dismiss the Application for Arbitration on a with cost basis, but he chose otherwise.

The Applicant has the onus of proof to establish his entitlement to his Application for Arbitration and his failure to attend accordingly means that he has failed to meet this onus.

Therefore, I am dismissing this Application for Arbitration with costs awarded against the Applicant. The costs against the Applicant must be paid to the Insurer within 60 days of this Decision. Further, the Applicant cannot file or commence any future claims against the Insurer until the outstanding amounts have been paid.

EXPENSES:

Mr. Schneider has requested expenses in this matter as a result of the dismissal of the Applicant’s Application for Arbitration. I am prepared to grant the Insurer its expenses in the amount of $2,500.00 as per the Legal Aid Tariff Rate, which is in accordance with the provisions of the Dispute Resolution Practice Code and Section 282(11) of the *Insurance Act*.

November 18, 2016

Jeff Musson

Arbitrator

Date