Chaudhari v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 165

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 165

FSCO A15-008431

BETWEEN:

CHANSYAMBHAI CHAUDHARI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Paulina Gueller

Heard:

In person at ADR Chambers on May 29, 2017

Appearances:

Mr. Chansyambhai Chaudhari did not participate

Ms. Jade Borne represented Mr. Chansyambhai Chaudhari

Mr. Kapil Gautam participated on behalf of State Farm Mutual Automobile Insurance Company

Mr. Michael Prosia represented State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Chansyambhai Chaudhari, was injured in a motor vehicle accident on September 7, 2013, and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule. ¹ The parties were unable to resolve their disputes through mediation, and Mr. Chaudhari, through his representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Should Bartolini, Berlingieri, Barrafato, Fortino LLP be removed from the record as Mr. Chaudhari’s counsel?
Should Mr. Chaudhari’s Application for Arbitration be dismissed?
Is State Farm entitled to its expenses of this proceeding?

Result:

I allow Bartolini, Berlingieri, Barrafato, Fortino LLP to be removed from the record as Mr. Chaudhari’s counsel.
Mr. Chaudhari’s Application for Arbitration is dismissed.
State Farm is entitled to its expenses of this proceeding in the amount of $2,182.54 inclusive of all fees, disbursements, and HST.

EVIDENCE AND ANALYSIS:

Motion to be Removed from the Record as the Applicant’s Counsel

Bartolini, Berlingieri, Barrafato, Fortino LLP brought a Motion to be removed from the record on May 24, 2017. At that time, the Pre-Hearing Arbitrator did not allow the removal.

At the commencement of the Hearing, Ms. Borne submitted that Bartolini, Berlingieri, Barrafato, Fortino LLP was unable to obtain instructions from its client. Consequently, there was a breakdown in the solicitor-client relationship. Therefore, Ms. Borne requested Bartolini, Berlingieri, Barrafato, Fortino LLP to be removed from the record as the Applicant’s counsel.

The Insurer did not take any position.

The Applicant did not appear at the Hearing; therefore, we broke for 30 minutes to allow the Applicant time to attend. After the Hearing resumed, Ms. Borne submitted that during the break, she spoke with the Applicant over the phone, and the Applicant stated he was not coming today.

Upon reading the Applicant’s counsel Motion materials and on hearing submissions of the parties, I accept the submissions of Bartolini, Berlingieri, Barrafato, Fortino LLP that there was a breakdown in the solicitor-client relationship, as they were not able to obtain instructions from their client, and I allow Bartolini, Berlingieri, Barrafato, Fortino LLP to be removed as counsel of record for the Applicant.

Dismissal

Mr. Chaudhari submitted an Application for Arbitration on November 23, 2015.

Two Pre-Hearing discussions in this case were held on May 20, 2016 and May 24, 2017. Mr. Chaudhari did not attend.

The Insurer raised a Motion to dismiss the Application for Arbitration. The Insurer submitted that the Applicant has shown disregard for the process as he has failed to attend the Pre-Hearings; instruct his counsel; and attend the Hearing.

Rule 37.9 of the Dispute Resolution Practice Code (“DRPC”) 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.

I am satisfied that the notices sent to Mr. Chaudhari complied with the requirements of Rule 9.1(c) of the DRPC and Section 6 of the Statutory Power and Procedures Act. Notwithstanding, Mr. Chaudhari did not attend the two Pre-Hearings or the Hearing.

Pursuant to Rule 37.9 of the DRPC, the Arbitration Hearing proceeded in Mr. Chaudhari’s absence.

The Applicant bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support the Applicant’s claims, this Application for Arbitration is dismissed.

EXPENSES:

Ms. Prosia provided me with a copy of the Bill of Costs that State Farm claims for fees and disbursements in the amount of $8,616.41 (which includes approximately 13 hours of work by counsel, 23.7 hours at $32.36 per hour of law clerk work, plus $682.64 for disbursements).

However, Mr. Prosia explained that State Farm would claim the amount of $3,959.56 for costs and disbursements, calculated at Legal Aid Rates, as detailed below:

a) $766.93 for 23.7 hours at $32.36 per hour for law clerk work;

b) $2,509.99 for 23 hours (13 hours for general Arbitration process and 10 hours for preparation for the Hearing and attending the Hearing); at $109.13 per hour for counsel (Mr. Prosia and Mr. Grigg); and

c) $682.64 for disbursements related to Hospital/Medical Records.

The relevant criteria for the Arbitrator when awarding expenses to a party, if the adjudicator is satisfied that the award of expenses is justified, is set out in Rule 75.1 and 75.2 of the DRPC as follows:

The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

(a) each party's degree of success in the outcome of the proceeding;

(d) 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;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

In awarding expenses, I am taking into consideration the relevant criteria, which include the party’s success in the proceedings and the conduct of the party that prolonged the proceeding unnecessarily. Mr. Chaudhari failed to pursue his claim, instruct his counsel and failed to attend the proceedings.

State Farm is the successful party and is entitled to its expenses. I consider the time that State Farm’s counsel spent preparing responses to the Application for Arbitration, consulting with its client and preparing and attending two Pre-Hearings and the Hearing.

Therefore, I find it is reasonable to grant some legal expenses. Accordingly, I exercise my discretion pursuant to subsection 282(11) of the Insurance Act and order Mr. Chaudhari pay State Farm expenses in the amount of $2,182.54 ($1,500.00 for legal work plus $682.54 for disbursements), inclusive of HST.

This amount is payable forthwith.

June 12, 2017

Paulina Gueller

Arbitrator

Date