Bassam Hamadeh v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 64

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 64

FSCO A13-005302

BETWEEN:

BASSAM HAMADEH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Suesan Alves

Heard: By telephone conference call on February 2, 2016.

Appearances: Mark S. Grossman for Mr. Hamadeh

John Choe for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Bassam Hamadeh, was injured in a motor vehicle accident on November 27, 2010. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Hamadeh 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 Mr. Hamadeh entitled to income replacement benefits of $400 per week between December 4, 2010 and November 26, 2012?
Is Mr. Hamadeh entitled to interest on overdue benefits?
Which party is entitled to its expenses?

Result:

Mr. Hamadeh’s claims for income replacement benefits, interest and expenses are dismissed.
If State Farm is pursuing a claim for expenses, that issue should be addressed in 30 days.

EVIDENCE AND ANALYSIS:

Background

Mr. Hamadeh was injured in an accident on November 27, 2010. He applied for arbitration and claimed income replacement benefits at the rate of $400 between December 4, 2010 and November 26, 2012, interest and expenses. State Farm disputed all of the relief Mr. Hamadeh sought and claimed its arbitration expenses.

The hearing commenced as scheduled on February 2, 2016. The Applicant did not attend the hearing but was represented by counsel. At the hearing, counsel for the Applicant brought an oral motion for his removal as the Applicant’s representative. Counsel for the Insurer brought a motion for the dismissal of the arbitration based on the history of the arbitration and his failure to comply with production Orders.

I dealt with the motions first, then with Mr. Hamadeh’s claims for income replacement benefits, interest and expenses.

Motion For Removal

The hearing commenced on February 2, 2015 at 10:00 a.m. Counsel for the Applicant advised that his client was not in attendance and brought an oral motion to be removed as Mr. Hamadeh’s representative due to a breakdown in the solicitor-client relationship. Mr. Grossman stated that he sent emails to his client and received no response.

Counsel for the Insurer did not oppose the motion.

I denied the request as the timing was prejudicial to his client and because there was no material before me which indicated that Mr. Hamadeh had been informed that the request for removal would be made.

Motion For Dismissal

Counsel for the Insurer brought a motion for the dismissal of the arbitration based on the history of the proceeding and Mr. Hamadeh’s non-compliance with production orders.

At the pre-hearing on September 3, 2014, counsel for the Applicant advised that Mr. Hamadeh was in Qatar; however, his spouse and a relative were present to assist counsel.

At the pre-hearing, counsel for both parties agreed to complete production exchange 90 days before the commencement of the hearing. At that time the hearing was scheduled for May 14 and 15, 2015. The Applicant did not provide the income and medical productions requested by counsel for the Insurer as had been agreed at the pre-hearing.

On May 5, 2015, the pre-hearing was resumed to address Mr. Hamadeh’s failure to produce the requested documents. Counsel for the Insurer brought a motion in writing for an Order to compel the Applicant to produce the requested documents. I ordered the Applicant to produce the outstanding medical and income related productions by August 31, 2015. The hearing was adjourned to February 2-3, 2016, to allow the Applicant time to comply with the production Order. Based on the Affidavit of Natasha Vujovic sworn January 8, 2016, which was filed in support of the motion for dismissal, I find that Mr. Hamadeh did not comply with the Order.

At a resumption of the pre-hearing on December 8, 2015, counsel for the Insurer advised that he intended to move for dismissal. The motion was made returnable at the hearing. Both counsel consented to my conducting the hearing.

Based on Mr. Hamadeh’s failure to comply with the Order to provide medical and income related productions in relation to his claims for income replacement benefits, I draw an adverse inference, that had they been produced they would not substantiate his entitlement to income replacement benefits.

After hearing both motions the hearing proceeded in relation to the Applicant’s claims.

The Applicant’s Claims

I then proceeded with the hearing in the absence of the Applicant. I asked counsel for the Applicant whether he intended to adduce evidence. He advised that he had none to adduce. I asked counsel for the Insurer whether he intended to adduce evidence. He advised that he did not intend to adduce evidence beyond the Affidavit evidence filed in relation to his motion to dismiss the hearing.

I dismiss Mr. Hamadeh’s claims for income replacement benefits because he failed to meet his burden of proof to establish entitlement to those benefits.

I dismiss Mr. Hamadeh’s claim for interest. Since no benefits are owed, it follows that no interest is payable.

I dismiss Mr. Hamadeh’s claim for expenses due to his non-compliance with his undertaking to produce documents and his breach of the production Order as set out above.

EXPENSES:

If the Insurer wishes to pursue a claim for expenses, brief written submissions should be provided within 30 days.

February 25, 2016

Suesan Alves Date

Arbitrator