Denise Prempeh v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 4

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 4

FSCO A15-003077

BETWEEN:

DENISE PREMPEH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Paulina Gueller

Heard: By teleconference on November 24, 2016

Appearances: Ms. Denise Prempeh did not participate

Mr. Richard Campbell participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Denise Prempeh, was injured in a motor vehicle accident on January 3, 2014, 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 Ms. Prempeh, through her 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 Ms. Prempeh’s Application for Arbitration be dismissed?
Is State Farm entitled to its expenses of this Application for Arbitration?

Result:

Ms. Prempeh’s Application for Arbitration is dismissed.
State Farm is entitled to its expenses in the amount of $875.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on September 1, 2016, at which Ms. Prempeh failed to appear.

At the Pre-Hearing held on September 1, 2016, Sokoloff Lawyers requested to be removed from the record because of a breakdown in the client-lawyer relationship.

By letter, dated September 2, 2016, I ordered Ms. Prempeh to provide me with the name of her new representative by September 21, 2016. Ms. Prempeh did not comply with my Order. Consequently, at the Pre-Hearing held on September 21, 2016, I permitted the withdrawal of Sokoloff Lawyers as Ms. Prempeh’s counsel of record, and Ms. Prempeh became unrepresented.

On September 21, 2016, I sent a letter to Ms. Prempeh at her last known address, to advise her of the missed Pre-Hearing discussion. The letter provided Ms. Prempeh with an Attendance Notice, setting a date of November 24, 2016 at 11:00 a.m., by teleconference, to hear the issues identified in the Application for Arbitration. The letter also advised her that should she not contact our office or participate in any further proceedings, I would dismiss her Application for Arbitration and consider State Farm’s request for expenses.

The Dismissal

For the reasons that follow, Ms. Prempeh’s Application for Arbitration is dismissed.

As of November 24, 2016, I was unable to contact Ms. Prempeh, she had yet to contact her legal representative or ADR Chambers as requested, and she had not participated in any of the Arbitration proceedings.

I am satisfied that Ms. Prempeh was given notice of all the proceedings related to her Application for Arbitration at her last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“the DRPC”), the Arbitration Hearing proceeded in her absence.

Ms. Prempeh bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing and no evidence was presented to support her claims, this Application for Arbitration is dismissed.

EXPENSES:

Mr. Campbell stated that State Farm’s expenses would total an amount close to $2,900.00, but considering the characteristics of this Application for Arbitration, he was prepared to make a reasonable discount. He stated that it would be realistic to request the amount of $875.00 (30% of the expenses incurred). He did not provide a Bill of Cost or details of State Farm’s disbursements.

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:

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 include the party’s success in the proceedings and the conduct of the party that prolonged the proceeding unnecessarily. Ms. Prempeh failed to pursue her claim, instruct her counsel, and to attend the Hearing.

State Farm is the successful party and is entitled to its expenses. I consider the time that State Farm’s counsel spent in preparing the responses to the Applications for Arbitration, consulting with their client, and attending two Pre-Hearings by telephone conference, as well as the Hearing.

I find that State Farm was aware that Ms. Prempeh had lost contact with her counsel and that she did not intend to pursue her Application for Arbitration. Therefore, I accept it as reasonable to grant the requested expenses.

Accordingly, I exercise my discretion pursuant subsection 282(11) of the Insurance Act, and order that Ms. Prempeh pay State Farm expenses in the requested amount of $875.00, inclusive of all fees, disbursements, and HST.

This amount is payable forthwith.

January 3, 2017

Paulina Gueller

Arbitrator

Date