Neutral Citation: 2017 ONFSCDRS 88

FSCO A13-001396 and A13-001397

BETWEEN:

HERBERT PHILLIP or THE ESTATE OF HERBERT PHILLIP Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION DISMISSING THE APPLICATION(S) FOR ARBITRATION HEREIN

Before: David Snider

Heard: As a motion by telephone conference call on November 7, 2016

Appearances: No-one appeared for Mr. Phillip Marni Miller for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Herbert Phillip, was injured in a motor vehicle accident on November 27, 2009. He applied for and received statutory 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. Phillip applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The information made available to this Commission by Mr. Phillip’s former representative indicated that Mr. Phillip passed away on August 14, 2015. However, no Death Certificate was filed. Nonetheless, as neither that representative, the Insurer nor this Commission had heard anything further from Mr. Phillip or any estate representative since that time I permitted the former representative to remove himself from the record as of November 7, 2016.

On November 7, 2016 I also prepared Notices of Intent to Dismiss with regard to both of the Applications for Arbitration which had been filed by Mr. Phillip’s representatives and which had been duly registered by the Commission and numbered A13-001396 and A13-001397 respectively. I now, by this order, specifically merge the two Applications into one (if it had not already been done before by this Commission) and will deal with them both accordingly with this single dismissal order. I addressed the notices to both Mr. Phillip and the Estate of Mr. Herbert Phillip and they were mailed, on or about November 7, 2016, to the last known address for Mr. Phillip which the Commission had in its records. The notices were not returned by Canada Post as undeliverable.

In the Notice of Intent to Dismiss I allowed double the standard amount of time (40 days, rather than 20) for Mr. Phillip or a representative of his estate to file an objection to this dismissal, but neither the Commission nor the Insurer received any reply of any sort to the Notice.

On March 10, 2017 the Counsel for the Insurer delivered a letter to my attention requesting that the final Dismissal Order(s) be issued with regard to these two Applications for Arbitration pursuant to the terms of the Notice(s) of Intent To Dismiss that I issued on November 7, 2016.

This brings me to my present duty. I find that the failure or inability of Mr. Phillip or some member of his family or representative of his estate to respond to the Notice(s) of Intent to Dismiss and the complete, continuing silence of the Applicant since August 14, 2015 constitutes what amounts to, in legal terms only, a vexatious proceeding. It cannot be properly moved along in any manner and hence it has become a form of burden on the Commission and upon the Insurer, which has been required to keep the file open and to administer it up to this point, as is demonstrated by its Counsel’s letter of March 10, 2017.

Accordingly, I dismiss the Applications(s) in this matter and order that both files be closed.

EXPENSES:

I doubt the efficacy of the Insurer requesting any form of expense order herein, but if they so wish they may make an application for an expense hearing within thirty days of the date of this order. In the unlikely event that the Applicant or any representative of the Applicant wishes to, they also have the right to make an application for an expense hearing within thirty days of the date of this order.

March 24, 2017

David Snider Arbitrator

Date

Financial Services Commission of Ontario