Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 36
FSCO A14-004234
BETWEEN:
ZAHRA MAHAMED
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator Patricia DeGuire
Heard: In person at ADR Chambers and by written submissions completed on December 10, 2015
Appearances: Ms. Zahra Mahamed did not participate
Mr. Domenic Nicassio participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Ms. Zahra Mahamed, claimed that she was injured in a motor vehicle accident on November 15, 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 Ms. Zahra Mahamed, through her representative at that time, 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 Motion are:
Should Ms. Zahra Mahamed's claims for statutory accident benefits from State Farm be dismissed?
Is Ms. Zahra Mahamed liable to pay State Farm’s expenses concerning this Application for Arbitration?
Result:
Ms. Zahra Mahamed’s Application for Arbitration is dismissed.
Ms. Zahra Mahamed is liable to pay State Farm its expenses as set out in the Order.
EVIDENCE AND ANALYSIS:
Chronology of the Proceeding
By Order, dated May 11, 2015, Arbitrator Kowal removed Kanevsky Law Office as Counsel of Record for Ms. Mahamed. It was sent to her by letter of the same date. That letter asked Ms. Mahamed to attend a Pre-Hearing on September 18, 2015 at 3:00 p.m.
A Pre-Hearing discussion was held on September 18, 2015 at 3:00 p.m., at the offices of the ADR Chambers. Mr. Blake Dawbon participated for State Farm. Ms. Bedard, Legal Counsel, participated on behalf of Mr. Nicassio, Legal Counsel, who represents State Farm.
Ms. Mahamed did not attend. Neither she nor anyone on her behalf contacted ADR Chambers to explain why she did not attend.
During the Pre-Hearing discussion, State Farm, by its Counsel advised that it wished me to hear a Motion to dismiss the Application for Arbitration. To my knowledge, Ms. Mahamed had not been given Notice that the Pre-Hearing was to deal with a Motion for dismissal or if she did not attend the Pre-Hearing, that process would have be converted into a Motion to dismiss her Application. I have accepted State Farm’s Motion materials, but ruled that Ms. Mahamed was not served or given Notice of the Motion to dismiss the Application or the Motion for expenses with respect to the Application.
During the Pre-Hearing, I directed State Farm to serve its Motion material on the Applicant by September 28, 2015, 4:30 p.m., and to file proof of service by the said date. I directed that, if the Applicant wished to respond to the Motion, she must file and serve her Response by October 19, 2015, 4:30 p.m. Further, I ruled that, except for an extraordinary circumstance, that date was not subject to change. Any reply must have been filed and served by October 26, 2015, 4:30 p.m.
The Motion was scheduled for December 10, 2015 at 9:30 a.m., in person, at ADR Chambers (4101 Yonge Street, 6th Floor, Toronto, Ontario).
By letter, dated September 18, 2015, ADR Chambers sent a letter to Ms. Mahamed; it was sent to her last known address. In that letter, she was informed that: she had missed Pre-Hearing discussion; a Motion to dismiss her Application for Arbitration would be heard on December 10, 2015 at 10:00 a.m., in person, and the location of the proceeding; she should contact ADR Chambers immediately, and, should she not contact our office or participate in further proceedings, further notice will not be sent to her and I would proceed to dismiss her application and consider State Farm’s request for expenses.
The letters, dated May 11, 2015, including the Order, and September 18, 2015, were sent by registered and regular mail. Both were sent to Ms. Mahamed's last known address. Both were returned with a notation “unclaimed” on the envelope.
Disposition
For the reasons that follow, Ms. Mahamed’s Application for Arbitration is dismissed.
As of December 10, 2015, ADR Chambers had not been contacted by Ms. Mahamed or anyone on her behalf. Ms. Mahamed had not participated in any of the Arbitration proceedings. Further, Ms. Mahamed had not complied with the Order to appear at the September 18, 2015 and December 10, 2015 proceedings.
Based on all the evidence before me, I am satisfied that Ms. Mahamed was given notice of all of the proceedings related to her Arbitration at her last known address. Ms. Mahamed was asked to make written submissions about the dismissal of her Application for Arbitration. She had failed to file and serve written submissions. Thus, consistent with Rule 38.1 of the Dispute Resolution Practice Code (“the Code”), I shall make a decision and issue an Order based on the record and the submissions file.
To iterate, Ms. Mahamed has failed to participate in the proceedings, even when ordered to do so. Her conduct or lack thereof concerning this matter is marked by her failure to participate. I find that the manner in which she approached this matter, except retaining a representative (who eventually removed herself from the record because Ms. Mahamed failed to give her instructions), lacked serious purpose or lacked in seriousness; in other words, her conduct was frivolous, within its legal meaning.
Ms. Mahamed has the legal duty to prove that she is entitled to benefits that she claimed in her Application for Arbitration. She did not appear at the Motion; no evidence or persuasive evidence was presented to support her entitlement to the claims.
EXPENSES:
For the reasons that follow, Ms. Zahra Mahamed shall pay to State Farm, forthwith, $1,100.00 (inclusive of fees, disbursement and taxes), for expenses concerning this Application for Arbitration. This Expense Order must be paid before Ms. Mahamed will be allowed to continue or begin any proceeding with respect to this Application or the accident of November 15, 2011.
State Farm asks for expenses in these proceedings in the amount of $7298.10: ($3449.50 for legal costs, detailed in its submissions; its Arbitration fee of $3,000.00; $9.00 for disbursements and $839.60 for taxes on fees and disbursements).
Pursuant to subsection 282(11) of Insurance Act, R.S.O., 1990, c.I.8, as amended, an Arbitrator may order one party to pay the other’s expenses:
In considering the appropriate amount to award, the Arbitrator will consider only the criteria noted in the Expense Regulation found in Section F and Rules 75 to 78 of the Code. The criteria are:
- Each party’s degree of success in the outcome of the proceeding;
- Any written offers to settle that were made in accordance with the rules of practice and procedure applicable to the proceeding after the conclusion of Mediation and before the conclusion of the Arbitration;
- Whether novel issues are raised in the proceeding;
- The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;
- Whether any aspect of the proceeding was improper, vexatious or unnecessary;
- Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10). Section 42 sets out what examinations and information the Insurer is entitled to ask for;
- Whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44 (9) of that regulation. Section 44 sets out what examinations and information the Insurer is entitled to ask for.
In all the circumstances, I find that only criteria 1, 4 and 5 are relevant to this matter.
Concerning the degree of success, Ms. Mahamed has not succeeded in her Application for Arbitration. She did not participate. That in itself, is indicative of Ms. Mahamed and addresses her conduct throughout these proceedings. As noted above, she did not show sufficient seriousness in pursuing this Application.
In awarding expenses, the amount may include the lawyer's fee and disbursements. Relying on Rules 75 to 78 of the Code, and in all the circumstances and considerations, I have concluded that $1,100.00, including disbursements and HST, is reasonable.
I find that the $3,000.00 filing fee is not recoverable. It is not integral to "Expenses" within the meaning of the Schedule. I am comforted in that conclusion by the fact that neither the Act nor the Regulations or case law or jurisprudence specifically allows an Insurer to recover its filing fee. As well, there is no cogent evidence before me that this is an extraordinary or clear case where the Insurer ought to be allowed to recover its filing fee ought.
January 25, 2016
Patricia DeGuire
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2016 ONFSCDRS 36
FSCO A14-004234
BETWEEN:
ZAHRA MAHAMED
Applicant
and
STATE FARM MUTUAL AUTOMOBILE NSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. Zahra Mahamed’s Application for Arbitration is dismissed.
Ms. Zahra Mahamed shall pay to State Farm, forthwith, $1,100.00 (inclusive of fees, disbursement and taxes), for expenses concerning this Application for Arbitration.
Ms. Zahra Mahamed must pay this fee before she is allowed to continue or begin another proceeding with respect to this application or the accident of November 15, 2011.
January 25, 2016
Patricia DeGuire
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.