Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 49

FSCO A13-013766

BETWEEN:

NAYEREH GHAGHCHI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: Maggy Murray

Heard: October 22, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appeard for Mrs. Ghaghchi

Wilhelmena (Rosalind) Eastmond for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Nayereh Ghaghchi, was involved in a motor vehicle accident on June 2, 2010. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm refused to pay various benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Ghaghchi 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 Mrs. Ghaghchi entitled to receive a non-earner benefit in the amount of $185 per week from December 2, 2010 and ongoing?
Is Mrs. Ghaghchi entitled to payments for housekeeping and home maintenance services in the amount of $100 per week from June 2, 2010 to June 2, 2012, less any amounts that were paid for this benefit?
Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mrs. Ghaghchi?
Is State Farm liable to pay Mrs. Ghaghchi’s expenses in respect of the arbitration?
Is Mrs. Ghaghchi liable to pay State Farm’s expenses in respect of the arbitration?
Is Mrs. Ghaghchi entitled to interest for the overdue payment of benefits?

Result:

Mrs. Ghaghchi’s claims are dismissed.
Mrs. Ghaghchi shall pay State Farm’s expenses of the arbitration fixed in the amount of $1,000.00, inclusive of fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

Mrs. Ghaghchi did not attend the pre-hearing on December 4, 2014. On October 22, 2015, prior to the hearing commencing, her counsel was removed from representing her. Mrs. Ghaghchi did not attend the arbitration hearing at 10:00 a.m. on October 22, 2015. No one appeared on her behalf. State Farm requested that the arbitration proceed in the absence of Mrs. Ghaghchi. I adjourned the hearing until 10:15 a.m. to allow time for Mrs. Ghaghchi to attend. At 10:40 a.m., I resumed the hearing in Mrs. Ghaghchi’s absence.

Rule 37.7 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) 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.

Notice of the hearing was sent to the Applicant by FSCO at her last known address.

The burden of proof in this arbitration proceeding lies with Mrs. Ghaghchi. In order to establish her entitlement to benefits, she must provide evidence supporting her claims. She presented no evidence and has failed to meet the burden of proof. Consequently, her claims for statutory accident benefits, interest and expenses are dismissed.

EXPENSES:

State Farm sought an order that Mrs. Ghaghchi was liable to pay $1,000.00 inclusive of fees, disbursements and HST.

I have considered the criteria in the Expense Regulation, which are contained in Rule 75.2 of the Code. The relevant 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 hearing.
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.

I find that Mrs. Ghaghchi was unsuccessful in all of her claims. I was not advised of any written offers to settle. There were no novel issues raised in the proceeding. An important consideration is that Mrs. Ghaghchi’s conduct prolonged the proceeding. I was presented with no evidence that any aspect of this proceeding was improper or vexatious. It appears that some aspects of the proceeding were unnecessary due to Mrs. Ghaghchi's conduct. I find that State Farm is entitled to its reasonable expenses in this arbitration based on its success.

The Insurer should be compensated at an appropriate rate for the services of its legal counsel in reviewing the file, preparing a Response and preparing for and attending at the pre-hearing conference. I fix expenses at $1,000.00, inclusive of disbursements and HST, payable by Mrs. Ghaghchi to State Farm.

February 9, 2016

Maggy Murray

Arbitrator

Date