Neutral Citation: 2017 ONFSCDRS 330 FSCO A16-003721

BETWEEN:

SATHIYANDRA THIRUNAVUKARASU Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Janet Davies Heard: In person at ADR Chambers on November 21, 2017

Appearances: No one appeared for the Applicant Mr. David LeDrew, legal counsel and Mr. Mike Foster, Adjuster, represented State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Sathiyandra Thirunavukarasu, was injured in a motor vehicle accident on December 15, 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. Thirunavukarasu, 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. Thirunavukarasu’s Application for Arbitration be dismissed?
Should expenses be awarded to State Farm?

Result:

Mr. Thirunavukarasu’s Application for Arbitration is dismissed.
Expenses in the amount of $1,983.15, inclusive of HST, are awarded to State Farm.

EVIDENCE AND ANALYSIS:

Chronology

An Application for Arbitration was filed on behalf of the Applicant on March 30, 2016. A Pre-Hearing discussion in this case was held on February 16, 2017. Mr. Thirunavukarasu did not participate but was represented by Mr. Nadarajah, licensed paralegal, who participated by telephone. Mr. LeDrew participated in person on behalf of State Farm. Mr. Rob Bolardo, accident benefits adjuster, participated for State Farm.

At the Pre-Hearing discussion, I was advised that the parties had reached an agreement and the file was subsequently closed.

On October 16, 2017, I received a request from counsel for the Insurer to re-open this matter as the documents pertaining to the settlement agreement had not been executed. This matter was re-opened pursuant to Rule 43 of the Dispute Resolution Practice Code (“DRPC”) and a Motion to hear the Insurer’s request to dismiss the Application for Arbitration, on a with cost basis, was scheduled for November 21, 2017. The Applicant and his representative were advised by regular mail and registered letter on November 2, 2017.

I attempted to contact Mr. Nadarajah, the Applicant’s legal representative, on October 20, 23 and 26, 2017, by both e-mail and voice mail. I was able to talk to someone in his office on October 23, 2017, who later advised that the Applicant would attend their office in the up-coming days to sign the settlement documents.

On November 16, 2017, the Insurer’s counsel advised that he had still not received the settlement documents and I had still not heard anything further on this from the legal representative for the Applicant.

The Dismissal

For the reasons that follow, Mr. Thirunavukarasu’s Application for Arbitration is dismissed on a with cost basis.

A request to dismiss Mr. Thirunavukarasu’s Application for Arbitration without a hearing was scheduled for November 21, 2017 at 10:00 a.m. at the offices of ADR Chambers. As neither Mr. Thirunavukarasu nor his legal representative, Mr. Nadarajah, had attended by 10:30 a.m., I attempted once again to reach the legal representative by telephone with no response. The matter proceeded in their absence.

The Insurer requested that the Application for Arbitration be dismissed, on a with cost basis, as being frivolous, vexatious and an abuse of process pursuant to Rule 68(1) of the DRPC.

I was satisfied that Mr. Thirunavukarasu and his legal representative were given notice, of the proceeding at their last known address, contained in the records of the Dispute Resolution Group pursuant to Rule 5.7(b) of the DRPC.

While I have no direct evidence about the situation surrounding the commencement of this Arbitration, or about the factual foundation of Mr. Thirunavukarasu’s claim, there are grounds to consider that the continuation of this arbitration, where one party clearly has no interest in participating, would be an abuse of process pursuant to Rule 75.2 (d) and (e) of the DRPC.

Mr. Thirunavukarasu bears the onus of proving entitlement to the claimed benefits. Since there has been no response from the Applicant or his legal representative in these proceedings, the Application for Arbitration is dismissed on a with cost basis.

EXPENSES:

Counsel for State Farm submitted a Bill of Costs in the amount of $1,983.15 in expenses for having to continually defend the Application for Arbitration due to the lack of participation on the part of the Applicant and/or his legal representative. In considering the award for expenses, I am mindful of the expense criteria set out in the Expense Regulation and Rules 75 to 78 of the DRPC.

I find the expenses claimed by State Farm in these proceedings to be reasonable and in accordance with the Expense Regulation and Rules 75 to 78 of the DRPC.

As such, Mr. Thirunavukarasu is ordered to pay State Farm’s expenses in the amount of $1,983.15, inclusive of HST. This amount is due and payable upon receipt of this order.

December 15, 2017

Janet Davies Arbitrator

Date

ARBITRATION ORDER

Financial Services Commission of Ontario Neutral Citation: 2017 ONFSCDRS 330 FSCO A16-003721