Neda Zali v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 52

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 52

FSCO A13-013767

BETWEEN:

NEDA ZALI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Maggy Murray

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

Appearances: No one appeared for Ms. Zali

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

Issues:

The Applicant, Neda Zali, 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 Ms. Zali 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. Zali entitled to receive a weekly income replacement benefit in the amount of $400 per week from June 9, 2010 to June 2, 2010?
Is Ms. Zali entitled to attendant care benefits in the amount of $507.37 per month from June 2, 2010 to June 2, 2012?
Is Ms. Zali 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 Ms. Zali?
Is State Farm liable to pay Ms. Zali’s expenses in respect of the arbitration?
Is Ms. Zali liable to pay State Farm’s expenses in respect of the arbitration?
Is Ms. Zali entitled to interest for the overdue payment of benefits?

Result:

Ms. Zali’s claims are dismissed.
Ms. Zali 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:

Ms. Zali did not attend the pre-hearing on December 4, 2014. On October 22, 2015, her counsel was removed from representing her prior to this hearing commencing. Ms. Zali 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 Ms. Zali. I adjourned the hearing until 10:15 a.m. to allow time for Ms. Zali to attend. At 10:40 a.m., I resumed the hearing in Ms. Zali'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 Ms. Zali. 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 Ms. Zali 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 Ms. Zali 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 Ms. Zali’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 Ms. Zali’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 the pre-hearing conference. I fix expenses at $1,000.00, inclusive of disbursements and HST, payable by Ms. Zali to State Farm.

February 9, 2016

Maggy Murray

Arbitrator

Date