Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 141 FSCO A13-014023
BETWEEN:
SAMA BARADARAN Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi Heard: April 10, 12 and 19, 2017, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Manoucher Baradaran (Form P representative) for Ms. Sama Baradaran Mari Maimets for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Sama Baradaran, was injured in a motor vehicle accident on May 30, 2012. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 State Farm terminated benefits. The parties were unable to resolve their disputes through mediation, and Ms. Baradaran applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
On the first scheduled day of the arbitration, Mr. Baradaran, the applicant’s father and Form P representative, sought permission to withdraw all of the disputes included in the applicant’s pending arbitration application without prejudice until such time as she reaches the age of majority. While initially opposed to the request, State Farm eventually relented and agreed that the request be granted. However, State Farm urged that it be permitted nonetheless to pursue its allegation of a material misrepresentation in respect of Sama‘s attendant care benefits claim.
The issues in this hearing are:
Should Sama Baradaran be permitted to withdraw the issues in dispute in this arbitration on a without prejudice basis until such time as she reaches age of majority?
Should State Farm be permitted to pursue its allegation of a material misrepresentation in respect of Sama’s attendant care benefits claim?
Is State Farm entitled to its expenses of the proceeding?
Result:
Sama Baradaran is permitted to withdraw the issues in dispute in this arbitration on a without prejudice basis until such time as she reaches age of majority.
State Farm cannot pursue its allegation of a material misrepresentation in respect of Sama’s attendant care benefits claim at this time.
The parties may make submissions with respect to entitlement and quantum of expenses as per the timeline set out below.
EVIDENCE AND ANALYSIS:
Withdrawal of issues in dispute
Rule 70.2 of the Dispute Resolution Practice Code allows an arbitrator to permit a party to withdraw a dispute where the parties agree. Given State Farm’s agreement that Sama be permitted to withdraw her arbitration disputes, I see no reason to deny the request. Sama is currently a minor and is not represented by counsel at these proceedings. Mr. Baradaran expressed an inability to properly represent her interests. In these circumstances, permitting a withdrawal of the disputes until such time as she reaches the age of majority allows her the opportunity decide how best to proceed with the issues.
For the record, those issues are outlined in the pre-hearing arbitrator’s letter of May 15, 2015 and are replicated here for ease of reference:
Is Ms. Baradaran entitled to the following medical benefits?
- Psychotherapy recommended by Dr. Log in a June 13, 2013 treatment plan for $1641.40
- Chiropractic/physiotherapy recommended by Dr. Mirzaamaeli in July 8, 2013 treatment plan for $760.62. In respect of this plan, State Farm raised a section 55 defence.
Is Ms. Baradaran entitled to $2075 for an orthopaedic assessment recommended by Dr. Hashi in a plan dated September 11, 2012?
Is Ms. Baradaran entitled to attendant care benefits in the amount of $3000 per month from October 1, 2012 onwards?
Is Ms. Baradaran liable to repay to State Farm $12000 that she received in attendant care benefits from June 1, 2012 to September 30, 2012? State Farm bases this claim for repayment upon material misrepresentations allegedly made by Manoucher Baradaran (which particulars State Farm set out in its amended Schedule “A” to its Response).
The material misrepresentation allegation
State Farm sought to pursue the allegations of material misrepresentation it made in respect of Sama’s attendant care benefits claim. State Farm argued that because the material misrepresentation allegations pertained to the actions of Mr. Baradaran, adjudication of this issue could continue notwithstanding the withdrawal of all of the disputes in Sama’s application for arbitration.
I find that State Farm is precluded at this point from pursuing the allegations of material misrepresentation in respect of Sama’s attendant care claim. State Farm’s allegations of material misrepresentation are related to its request for repayment of the attendant care benefits already paid to Sama and are inextricably linked to one of the issues in Sama’s application for arbitration. With all of the issues in that application now having been withdrawn, there is no application before the Commission. I can find no provision in the Schedule or the Insurance Act that allows an insurer to bring its own application for arbitration. Section 281(1) of the Act is clear that only an insured person may refer a matter to an arbitrator under section 282, i.e., to the Commission.
Therefore, State Farm‘s request to pursue the material misrepresentation allegations is denied.
EXPENSES:
State Farm asked for a hearing with respect to its expenses on this proceeding and I agreed that the parties may make written submissions on the issue of expenses. Submissions are due as follows: State Farm initial submissions– May 5, 2017; Applicant response – May 19, 2017; State Farm’s reply, if necessary, May 31, 2017.
My decision in this regard will follow receipt of those submissions.
May 17, 2017
Rosemary Muzzi Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 141 FSCO A13-014023
BETWEEN:
SAMA BARADARAN Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Sama Baradaran is permitted to withdraw the issues in dispute in this arbitration on a without prejudice basis until such time as she reaches age of majority.
State Farm cannot pursue its allegation of a material misrepresentation in respect of Sama’s attendant care benefits claim at this time.
May 17, 2017
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.