Neutral Citation: 2017 ONFSCDRS 329 FSCO A16-002362

BETWEEN:

PIRABAH VIJAY Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Alan Mervin Heard: October 22, 2017, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Mrs. Vijay did not participate, no one appearing on her behalf Bruce Chambers for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Pirabah Vijay, was injured in a motor vehicle accident on September 18, 2014. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated benefits, and the parties were unable to resolve their disputes through mediation. Mrs. Vijay 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 the Applicant’s Application for Arbitration be dismissed?
Is State Farm entitled to its expenses of this arbitration?

Result:

The Applicant’s Application for Arbitration is dismissed.
State Farm is entitled to payment of its expenses in respect of this Arbitration in the amount of $1,000.00.

EVIDENCE AND ANALYSIS:

In the Application for Arbitration in this matter, Mrs. Vijay claimed payment for medical expenses and interest thereon. She further disputed her placement in the MIG, as it was her position that her injuries were not minor in nature, and was entitled to all benefits available to her under the Schedule. The Application was filed on her behalf by a paralegal at Pace Law Firm, who were her representatives at the time.

These issues were not resolved at mediation, and an in-person pre-hearing was held on May 30, 2017 at FSCO, at which time Mrs. Vijay was represented, and the issues were confirmed. She was disputing denial of payment of medical expenses in the amount of $1,986.40, and requested interest thereon and her expenses.

Subsequent to the pre-hearing in this matter, Mr. Chambers advised that the parties had negotiated a settlement of the issues in this arbitration, and it was agreed that the arbitration was to be dismissed.

However, Pace Law Firm had difficulty in contacting the Applicant, and was unable to have the Applicant execute the necessary settlement documentation in order to complete the settlement.

Pace then served and filed a Notice of Motion seeking removal from the record as her representatives, based on a breakdown in the solicitor-client relationship. The motion was to be heard on July 6, 2017, but was adjourned to July 19, 2017 because the Applicant did not appear. Apparently, the motion materials were initially sent to the wrong address, and it was therefore necessary to adjourn the motion so that the Applicant could be properly served at the correct address.

In its motion materials, Pace alleged that it had lost contact with the Applicant, despite numerous unsuccessful attempts to reach her. The motion was then heard on July 19, 2017. The Applicant did not appear, and the motion was granted. Pace Law Firm was removed from the record.

No new representative had been retained, so the matter continued with Mrs. Vijay as a self-represented Applicant.

A Notice of Hearing was sent to the Applicant at her last known address, for this hearing, both by mail and email. I am satisfied that the Applicant had proper notice of this hearing. Prior to this hearing, a settlement discussion was booked for November 16, 2017, and a Notice for Settlement Discussion was sent to all parties. Despite several unsuccessful telephone attempts and voice mail messages, FSCO staff was unable reach her to confirm the settlement conference and it did not take place.

At the commencement of the hearing on November 22, 2017, neither the Applicant nor anyone representing her appeared. Mr. Bruce Chambers, who advised that he was ready to proceed, represented State Farm. I stood the matter down for thirty minutes to allow the Applicant further time to appear in person or through a representative. At 10:35 a.m., no one had appeared for her.

I then attempted to reach her by telephone at the number, which had been provided to FSCO, and left two messages on voice mail.

I am satisfied that the notices sent to Mrs. Vijay complied with the requirements of Rule 9.1(c) of the Dispute Resolution Practice Code (“DRPC”) and Section 6 of the Statutory Powers Procedure Act, and that Mrs. Vijay received notice of all of the proceedings related to her Arbitration at her last known address.

Pursuant to Rule 37.9 of the DRPC, the Arbitration Hearing proceeded in her absence. Rule 37.9 of the 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.”

The Applicant bears the onus of proving entitlement to the claimed benefits. Since Mrs. Vijay did not appear at the Hearing and no evidence was presented on her behalf to support her claims, this Arbitration is dismissed.

EXPENSES:

State Farm has requested an award of its expenses in the amount of $1,000.00.

In support of this request, Mr. Chambers submitted that he had prepared the response to the Application for Arbitration, reviewed the file and provided an opinion to his client regarding the file, attended the pre-hearing in this matter, and had negotiated a settlement of this matter anticipating that the matter would be dismissed after execution of the settlement documents.

However, as the settlement was not perfected, Mr. Chambers advised that he had to take further steps to reinstate the matter. He attended the in-person motion brought by the Applicant’s law firm for removal from the record, prepared, served and filed the Arbitration brief in this matter. He attended the hearing, and was prepared and ready to proceed with a scheduled two-day hearing.

Although no formal account was submitted, I find that the request for expenses in the amount of $1,000.00 is quite nominal and reasonable under the circumstances, considering the amount of work needed to complete this matter, and that much of the delay and extra work could have been avoided with minimal input by the Applicant.

I therefore find that State Farm is entitled to its expenses in the amount of $1,000.00.

December 14, 2017

Alan Mervin Arbitrator

Financial Services Commission of Ontario