Neutral Citation: 2017 ONFSCDRS 99 FSCO A14-009743

BETWEEN:

(AZAM) SYED KAZMI Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on February 15, 2017 and by written submissions due March 20, 2017

Appearances: Mr. Robert Ipacs for Mr. (Azam) Syed Kazmi Ms. Ashraf (Ashu) Ismail for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. (Azam) Syed Kazmi, was injured in an accident on November 18, 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. Kazmi, 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 Hearing are:

Should Mr. Robert Ipacs of Ipacs Law Office be permitted off-the-record as legal representative for the Applicant?
Should the Applicant's Application for Arbitration be dismissed?
Should the Insurer be granted costs or expenses in respect of the Application for Arbitration?

Result:

Mr. Robert Ipacs of Ipacs Law Office is permitted off-the-record as legal representative for the Applicant.
The Applicant's Application for Arbitration is dismissed.
The Insurer is granted $500.00 in expenses in respect of the Application for Arbitration.

EVIDENCE AND ANALYSIS:

The Arbitration Hearing in this matter was scheduled for February 15, 2017 at the offices of ADR Chambers. Ms. Ashraf (Ashu) Ismail, counsel for State Farm, attended, as did Ms. Lili Zheng, a representative from State Farm. Mr. Robert Ipacs attended on behalf of the Applicant. The Applicant failed to attend.

Mr. Ipacs stated that he had lost contact with his client despite diligent efforts to contact him by telephone, in writing and in person. The Applicant's counsel requested to be removed as counsel of record due to a breakdown of the client solicitor relationship.

DECISION

Removal of Counsel of the Applicant

At the Hearing, the Applicant's counsel stated that he had trouble reaching the Applicant leading up to the Hearing; however, Mr. Ipacs stated that the Applicant was notified about the Hearing. Based on the evidence provided, I am satisfied that the Applicant was notified of the Hearing and all proceedings to date since the Pre-Hearing. I'm also satisfied that the Applicant knew that he must attend, but chose otherwise. He also knew, through his representative, that failing to attend the Hearing could result in State Farm bringing a Motion to dismiss the Application for Arbitration on a with cost basis. As a result, I have ordered that Mr. Ipacs be removed as counsel for the Applicant.

Motion to Dismiss the Application for Arbitration

The Insurer brought forward a Motion to dismiss the Applicant's Application for Arbitration. The onus of proof is on the Applicant to establish his entitlement to the benefits in dispute listed in his Application for Arbitration. Accordingly, his failure to attend means that he has failed to meet this onus. In order to give the Applicant an opportunity to comment on this Motion, I reserved my decision on dismissal until 30 days from the date of the Hearing. If I did not receive a response in writing to a letter sent to the Applicant within 30 days of the Hearing, I would then proceed to dismiss the Applicant's Application for Arbitration on a for cost basis.

The Applicant failed to respond to my letter, dated February 20, 2017, therefore, I am dismissing the Applicant's Application for Arbitration with costs awarded against the Applicant. The awarded costs against the Applicant must be paid within 60 days of this Decision to the Insurer. Further, the Applicant cannot file or commence any future claims against the Insurer until the outstanding amounts have been paid to the Insurer.

EXPENSES:

The Insurer has requested expenses in this matter as a result of the dismissal of the Applicant's Application for Arbitration. The Insurer requested costs of $500.00 in accordance with the provisions of the Dispute Resolution Practice Code and Section 282(11) of the Insurance Act. After careful consideration, I am prepared to grant the Insurer its expenses in the amount of $500.00.

April 3, 2017

Jeff Musson Arbitrator

Date

Financial Services Commission of Ontario