Kimble Smith v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 269

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 269

FSCO A14-009877

BETWEEN:

KIMBLE SMITH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Kimberly Parish

Heard:

In person at ADR Chambers on September 27, 2017

Appearances:

Mr. Kimble Smith did not participate

Ms. Maggie Morgan, lawyer for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Kimble Smith (“Mr. Smith”), was injured in a motor vehicle accident on November 1, 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. Smith, through his prior legal 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 Hearing are:

Should Mr. Smith’s Application for Arbitration be dismissed?
Is State Farm entitled to it expenses for this Arbitration?

Result:

Mr. Smith’s Application for Arbitration is dismissed.
State Farm is entitled to its expenses for this Arbitration in the amount of $2,000.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on June 21, 2016 at the offices of ADR Chambers. Mr. Smith participated and was legally represented at the Pre-Hearing. Ms. Caryl Lynn Baillie attended the Pre-Hearing on behalf of State Farm and was legally represented by Mr. Jean-Claude Rioux, legal counsel. The parties were unable to resolve the issues in dispute at the Pre-Hearing and the Arbitration Hearing dates were scheduled for September 27, 28, 2017.

On May 31, 2017, ADR Chambers received a copy of a motion record, filed by Mr. Smith’s legal counsel at the time. The motion record was sent to all parties to this proceeding in accordance with Rule 9.7 of the Dispute Resolution Practice Code (“DRPC”). The motion record requested the removal of Mr. Smith’s legal counsel as the solicitor of record for this Arbitration due to a breakdown in the solicitor-client relationship. The motion record did contain the last known address for Mr. Smith.

Arbitrator Schnapp issued a letter by regular and registered mail dated August 22, 2017 to Mr. Smith’s last known address. The letter notified Mr. Smith of the removal of his legal counsel as the solicitor of record for this Arbitration and advised Mr. Smith he was self-represented for this Arbitration. The letter further noted that the Arbitration Hearing was scheduled to commence on September 27, 28, 2017 and noted the location for the Hearing.

ADR Chambers received no correspondence from Mr. Smith following the issuance of Arbitrator Schnapp’s letter of August 22, 2017.

The Dismissal

As Mr. Smith failed to attend the scheduled Hearing for this matter, the Insurer’s counsel raised an oral motion requesting this Application for Arbitration be dismissed with costs awarded against Mr. Smith in the amount of $2,000.00 total.

The Insurer’s counsel, Ms. Morgan, stated that pursuant to Rule 39 of the DRPC, Mr. Smith has not filed any documentation, nor a witness list for the Hearing. Ms. Morgan requested this Application for Arbitration be dismissed as Mr. Smith appears to have abandoned his claim. Ms. Morgan lastly stated that the Insurer has requested a reasonable and nominal amount for its costs and the amount the Insurer has spent to date on this file exceeds the amount requested by the Insurer.

I am satisfied that Mr. Smith was provided with notice of the Hearing. The Hearing dates were scheduled at the Pre-Hearing attended by Mr. Smith. Mr. Smith did not attend the scheduled Hearing and the Hearing proceeded in his absence. Mr. Smith bears the onus of proving entitlement to the claimed benefits. Since he failed to appear at the Hearing and no evidence was presented to support his claim, his Application for Arbitration is dismissed.

EXPENSES:

I find State Farm’s request for expenses in the amount of $2,000.00 to be justifiable and reasonable. The expenses State Farm has incurred to date since the filing of this Application for Arbitration most likely exceeds $2,000.00. Therefore, I fix costs against Mr. Smith in the amount of $2,000.00, inclusive of HST.

October 19, 2017

Kimberly Parish Arbitrator

Date