Neutral Citation: 2016 ONFSCDRS 46 FSCO A14-002033

BETWEEN:

ROSHANE WEBSTER Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Kimberly Parish Heard: In person at ADR Chambers on January 7, 2016 Appearances: Mr. Roshane Webster did not participate Ms. Sue Kumar participated for Mr. Roshane Webster Ms. Marni Miller participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Roshane Webster, was injured in a motor vehicle accident on April 13, 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 Mr. Webster, 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 Mr. Webster's Application for Arbitration be dismissed?
Is Mr. Webster liable to pay State Farm's expenses concerning this Application for Arbitration?

Result:

Mr. Webster's Application for Arbitration is dismissed.
Mr. Webster is liable to pay State Farm expenses as set out in the Order.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on November 17, 2015 at 12:00 p.m., at the offices of ADR Chambers. Mr. Webster failed to appear.

On November 17, 2015, I sent a letter to Mr. Webster via regular and registered mail to his last known address to advise him of the missed Pre-Hearing discussion. The letter provided Mr. Webster with an Attendance Notice, setting a date for the Arbitration Hearing to be held on January 7, 2016 at 2:30 p.m., in person, at ADR Chambers (4101 Yonge Street, 6th Floor, Toronto, Ontario), to hear the issues identified in the Application for Arbitration. The letter also advised him that should he not contact our office or participate in any further proceedings, I would dismiss his application and consider State Farm's request for expenses.

The Dismissal

For the reasons that follow, Mr. Webster's Application for Arbitration is dismissed.

As of January 7, 2016, ADR Chambers did not hear from Mr. Webster, and he had not participated in any of the Arbitration proceedings. I heard from his representative, Ms. Kumar, at the Hearing that Mr. Webster planned to attend the proceeding scheduled for January 7, 2016. We waited until 3:15 p.m. but Mr. Webster did not show up and Ms. Kumar had been unable to reach him by telephone.

I am satisfied that Mr. Webster was given notice of all of the proceedings related to his Arbitration at his last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code ("the Code"), the Arbitration Hearing proceeded in his absence.

Mr. Webster bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claim, this Arbitration is dismissed.

EXPENSES:

For the reasons that follow, Mr. Roshane Webster shall pay to State Farm, forthwith, $960.78 (inclusive of fees, disbursements and HST), for expenses concerning this Application for Arbitration.

State Farm asks for expenses in these proceedings in the amount of $1,225.07: $912.13 for legal fees, detailed in its submissions, and $172.00 for disbursements, legal fees and disbursements, inclusive of HST.

Pursuant to subsection 282(11) of the 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 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 review of the criteria noted above, I find only criteria 1, 4, and 5 are relevant to this matter.

Concerning the degree of success, Mr. Webster has not succeeded in his Application for Arbitration. He did not participate in any of the scheduled Arbitration proceedings. This addresses Mr. Webster's conduct throughout these proceedings. Mr. Webster has failed to demonstrate serious intent in pursuing this Application.

As part of the legal fees sought by State Farm, the Insurer has itemized within its Bill of Costs, 7.8 hours for legal fees and has further itemized these fees to include 4 hours for attendance at the Pre-Hearing and the Hearing.

As the Applicant did not attend either the Pre-Hearing or the Hearing, the actual time spent at both the Pre-Hearing and the Hearing was an hour for each. Therefore I am reducing the amount being claimed for legal fees by State Farm by 2 hours.

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 $960.78, which includes disbursements and HST, is reasonable.

February 8, 2016

Kimberly Parish Arbitrator

Date

Financial Services Commission of Ontario