Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 223
FSCO A13-007957
BETWEEN:
MARKANDU KIRUPAKARAN
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Janet Davies
Heard: In person at ADR Chambers on August 8, 2017
Appearances: Mr. Markandu Kirupakaran did not participate Ms. Katelyn Meyers participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Mr. Markandu Kirupakaran, was injured in a motor vehicle accident on September 22, 2009 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. Kirupakaran, through his representative at that time, 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:
Should Mr. Markandu Kirupakaran’s Application for Arbitration be dismissed?
Should expenses be awarded to State Farm?
Result:
Mr. Markandu Kirupakaran’s Application for Arbitration is dismissed.
Expenses in the amount of $765.33 are awarded to State Farm.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was held on July 28, 2015, at which time the Applicant participated with his legal counsel. On May 10, 2017, an Order was made removing the firm of Srebrolow, Lebowitz, Spadafora as the Applicant’s legal counsel for this Application for Arbitration. The letter advised the Applicant of the Hearing date and that as he was now self-represented, he may want to have counsel.
The Dismissal
For the reasons that follow, the Applicant’s Application for Arbitration is dismissed.
A Hearing was scheduled to commence on August 8, 2017 at 10:00 a.m. As the Applicant had not attended by 10:30 a.m. to participate in the proceeding, the Insurer’s counsel requested that the Application for Arbitration be dismissed.
I am satisfied that the Applicant was given notice of all of the proceedings related to his Application for Arbitration at his last known address. Pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“DRPC”), the Arbitration Hearing proceeded in his 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 his claims, this Application for Arbitration is dismissed.
EXPENSES:
Counsel for the Insurer requested $5,133.96 for expenses. As it appears the Applicant has abandoned his Application for Arbitration during the last phase of the Arbitration process, I am of the opinion that the Insurer is entitled only to a nominal amount for its expenses and full compensation for its disbursements.
In considering the award for expenses, I am mindful of the expense criteria set out under Rule 75 of the DRPC and find as the Applicant did not attend the Hearing, the Insurer was the successful party.
I also find that the Insurer was aware many months prior to the Hearing that the Applicant may not appear and it would not have had to prepare for a contested Hearing. I am therefore awarding the Insurer its full disbursements in the amount of $515.33 and $250.00 in “throw away” expenses in having to attend at the Hearing in which the Applicant did not appear. The total owing to the Insurer by the Applicant is $765.33 and is payable upon receipt of this Order.
August 21, 2017
Janet Davies Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 223
FSCO A13-007957
BETWEEN:
MARKANDU KIRUPAKARAN
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:
Mr. Markandu Kirupakaran’s Application for Arbitration is dismissed.
Expenses in the amount of $765.33 are awarded to State Farm.
August 21, 2017
Janet Davies Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.