Kay Kelly v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 324

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 324

FSCO A14-008843

BETWEEN:

KAY KELLY

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Anne Sone

Heard: June 10, 2016, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ms. Kelly did not appear

Stacey Hsu for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Kay Kelly, was injured in a motor vehicle accident on January 18, 2012. She applied for statutory 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. Kelly 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 Ms. Kelly entitled to receive a weekly income replacement at the rate of $75 per week from January 26, 2012 to January 1, 2013?
Is State Farm liable to pay Ms. Kelly’s expenses in respect of the arbitration?
Is Ms. Kelly liable to pay State Farm’s expenses in respect of the arbitration?
Is Ms. Kelly entitled to interest for the overdue payment of benefits?

Result:

Ms. Kelly’s application for arbitration is dismissed.
Ms. Kelly shall pay State Farm’s expenses of the arbitration fixed at $500, inclusive of HST.

EVIDENCE AND ANALYSIS:

Background:

Ms. Kelly failed to attend a pre-hearing discussion held on January 26, 2016. After waiting 30 minutes for Ms. Kelly’s attendance, the pre-hearing discussion then proceeded in her absence. The issues were identified and a hearing date was scheduled for June 10, 2016. My pre-hearing letter of January 29, 2016 confirmed the date and time of the hearing, and advised the parties as follows:

Should Ms. Kelly attend at the arbitration hearing on June 10, 2016, at 10:00 a.m. at the offices of the Financial Services Commission of Ontario in Toronto, the hearing will be converted into a pre-hearing.

A Notice of Hearing dated January 30, 2016, confirming the June 10, 2016 hearing, was sent to Ms. Kelly. The Notice of Hearing was not returned to the Commission as undeliverable.

The Arbitration Hearing:

On June 10, 2016, at 10:00 a.m., Ms. Heather Kileeg, adjuster, attended on behalf of State Farm and Ms. Stacey Hsu, legal counsel, appeared as its representative at the Commission.

By 10:30 a.m., Ms. Kelly had still not arrived at the Commission.

Rule 37.9 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) (the “Code”) provides as follows:

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.

Further to Rule 37.9 of the Code, and being satisfied that Ms. Kelly had been properly served at her last known address with the Notice of Hearing, the arbitration hearing proceeded in her absence.

As Ms. Kelly did not attend to present any evidence, she failed to establish her entitlement to the benefits claimed. Ms. Kelly’s claims were therefore dismissed.

EXPENSES:

State Farm requested its expenses of the arbitration and submitted a Bill of Costs for $2,926.86 (including fees of $2,913.50 and disbursements of $13.27). Given the brevity of these proceedings, I fixed the expenses payable to State Farm at $500, inclusive of HST.

November 30, 2016

Anne Sone

Arbitrator

Date