Neutral Citation: 2017 ONFSCDRS 248 FSCO A15-001340

BETWEEN:

ROSHAN SAHADEO Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Paulina Gueller

Heard: By written submissions completed on August 4, 2017

Appearances: Mr. Roshan Sahadeo did not participate Mr. Todd J. McCarthy and Mr. Richard J. Campbell, both counsel, for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Roshan Sahadeo, was injured in a motor vehicle accident on October 10, 2012, 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. Sahadeo, through his representative, 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 Motion are:

Should Mr. Sahadeo’s Application for Arbitration be dismissed?
Is State Farm entitled to its expenses of this Application for Arbitration process?

Result:

Mr. Sahadeo’s Application for Arbitration is dismissed.
State Farm is entitled to its expenses of this Application for Arbitration that I have assessed in the amount of $500.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Dismissal of the Claim

Mr. Sahadeo submitted an Application for Arbitration on February 24, 2015. Two Pre-Hearings were held on March 24 and September 14, 2016. The parties reached an agreement at the second Pre-Hearing and ADR Chambers closed the file on October 5, 2016.

The Insurer submitted that the settlement documents were never executed despite the efforts of the Applicant’s counsel to obtain the settlement documents. Consequently, the Applicant’s counsel brought a motion to be removed off the record. The file was reopened and on May 24, 2017, I allowed D'Angela Fox Vanounou LLP to be removed off the record as the Applicant’s counsel.

On June 19, 2017, the Insurer brought a motion to dismiss the claim.

By letter dated June 30, 2017, I scheduled a motion to be heard in writing, advising Mr. Sahadeo that if I did not receive any written submission from him by July 28, 2017, I could dismiss the claim without further notice, pursuant rule 68.4 of the Dispute Resolution Practice Code (“DRPC”).

Mr. Sahadeo did not submit any material responding to the written Motion.

Rule 68 of the DRPC states:

68.1 Subject to Rule 68.2, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

68.2 Before dismissing a proceeding under this Rule, an adjudicator shall deliver written notice to all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1.

68.3 Where a party objects to a dismissal of the proceeding pursuant to Rule 68.1 or seeks to make written submissions with respect to the dismissal, the party must:
(a) provide the grounds upon which the party objects to the dismissal of the proceeding, or set out any other issues or concerns, in writing; and
(b) serve the material upon the other parties and file it within 20 days of the date of the notice provided under Rule 68.2.

68.4 An adjudicator will consider any written objections or submissions received and may make an order on such terms as he or she considers just.

Decision:

I am satisfied that Mr. Sahadeo was given notice of all of the proceedings related to his Application for Arbitration at his last known address complying with the requirements of Rule 9.1(c) of the DRPC and section 6 of the Statutory Power and Procedures Act.² Notwithstanding the notices and letters, Mr. Sahadeo did not provide instructions to his counsel, nor has he provided any written submissions in response to the Motion.

Mr. Sahadeo has the responsibility to establish the entitlement to his claim. Therefore, I conclude that he has no interest in pursuing his Application for Arbitration as he has abandoned it, and that this proceeding is frivolous.

I am satisfied that Mr. Sahadeo was given an opportunity to make submissions should he wish to object to the dismissal of his Application for Arbitration as required by Rule 68.3 of the DRPC.

All the above-mentioned reasons suffice to dismiss Mr. Sahadeo’s Application for Arbitration, pursuant Rule 68.1 of the DRPC.

EXPENSES:

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

The Adjudicator will only consider the criteria referred to in the Expense Regulation found in Section F of the DRPC. 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 includes the party’s success in the proceedings and the conduct of the party that prolonged the proceedings unnecessarily. Mr. Sahadeo failed to pursue his claim, instruct his counsel, and respond to the Motion.

State Farm is the successful party and is entitled to its expenses. I consider that the parties reported that the file was settled but the documents were not executed. I also consider the time that State Farm’s counsel spent in preparing the responses to the Application for Arbitration, the Motion to dismiss the claim, consulting with its client, and attending three Pre-Hearings.

State Farm requested its expenses in the amount of $750.00, but did not provide a Bill of Costs or details of its disbursements.

I accept that it is reasonable to grant some legal expenses.

Accordingly, I exercise my discretion pursuant subsection 282(11) of the Insurance Act, and order that Mr. Sahadeo pay State Farm expenses that I have assessed at $500.00, in “throw away” expenses, inclusive of all fees, disbursements, and HST. This amount is payable forthwith.

September 21, 2017

Paulina Gueller Arbitrator

Date

Financial Services Commission of Ontario