Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 15
FSCO A15-001495
BETWEEN:
DEVI SOMWARU
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Maggy Murray
Heard: November 1, 2016, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: No one appeard for Ms. Somwaru
Rachelle Villanueva for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Devi Somwaru, was injured in a motor vehicle accident on July 2, 2014. 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 for various benefits. The parties were unable to resolve their disputes through mediation, and Ms. Somwaru 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. Somwaru entitled to receive a weekly income replacement of $400 per week from July 9, 2014 and ongoing?
Is Ms. Somwaru entitled to receive medical benefits claimed for Treatment Plans with Prime Healthcare Inc. as set out below:
i) $2,208.60 dated August 28, 2014;
ii) $1,229.81 dated July 11, 2014;
iii) $3,371.32 dated July 3, 2014;
iv) $1,706.80 dated October 2, 2014;
v) $1,855.39 dated September 25, 2014?
Is Ms. Somwaru entitled to benefits outside the MIG (Minor Injury Guideline)?
Is State Farm liable to pay Ms. Somwaru’s expenses in respect of the arbitration?
Is Ms. Somwaru liable to pay State Farm’s expenses in respect of the arbitration?
Is Ms. Somwaru entitled to interest for the overdue payment of benefits?
Result:
Ms. Somwaru’s claims are dismissed.
Ms. Somwaru shall pay State Farm’s expenses of the arbitration fixed in the amount of $3,000.00, inclusive of fees, disbursements and HST.
EVIDENCE AND ANALYSIS:
Ms. Somwaru did not attend the pre-hearing on November 24, 2015, or the settlement discussion on October 4, 2016, or the motion to remove her counsel from representing her on November 1, 2016 at the Financial Services Commission of Ontario. On November 1, 2016, her counsel was removed from representing her. Ms. Somwaru did not attend the arbitration hearing at 10:00 a.m. on November 1, 2016 and no one appeared on her behalf. State Farm requested that the arbitration proceed in the absence of Ms. Somwaru. I adjourned the hearing until 11:00 a.m. to allow time for Ms. Somwaru to attend. At 11:00 a.m., I resumed the hearing in Ms. Somwaru's absence.
Rule 37.7 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) states:
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 and it was not returned as undeliverable.
The burden of proof in this arbitration proceeding lies with Ms. Somwaru. 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. Somwaru was liable to pay costs, inclusive of fees, disbursements and HST, calculated in accordance with the legal aid rates for the law clerk and lawyers.
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. Somwaru 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. Somwaru’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. Somwaru’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 and law clerk in reviewing the file, preparing a Response and preparing for and attending at the pre-hearing conference. Based on the submissions of State Farm’s counsel, I fix expenses at $3,000.00, inclusive of disbursements and HST, payable by Ms. Somwaru to State Farm.
January 17, 2017
Maggy Murray Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 15
FSCO A15-001495
BETWEEN:
DEVI SOMWARU
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 Regulation 664, as amended, it is ordered that:
Ms. Somwaru’s claims in this arbitration are dismissed.
Ms. Somwaru shall pay State Farm’s expenses of the arbitration fixed in the amount of $3,000.00, inclusive of disbursements and HST.
January 17, 2017
Maggy Murray Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.