Arbitration easily dismissed in Dukaj v. State Farm Mutual Automobile Insurance Company

Case

Burim Dukaj v. State Farm Mutual Automobile Insurance Company, FSCO A13-004027

Facts

Burim Dukaj, the applicant, sustained injuries in a motor vehicle accident.  He then made an application to receive from State Farm Mutual Automobile Insurance Company statutory accident benefits, according to the Statutory Accident Benefits Schedule.  There was disagreement over the entitled benefits, and although the parties went into mediation, the disagreement persisted.  As a result, Dukaj applied to the Financial Services Commission of Ontario (FSCO) for arbitration under the Insurance Act, R.S.O. 1990, c.I.8.  Although FSCO gave proper notices to Dukaj about the arbitration, he still did not attend the arbitration.  Additionally, the law firm, Lofranco Corriero Personal Injury Lawyers, made a request to discontinue its role as the representative on record for Dukaj.

Issues

  1. Should Lofranco Corriero Personal Injury Lawyers be allowed to withdraw as the representative on record for Dukaj?
  2. Should the Application for Arbitration by Dukaj be dismissed?

Law

Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O Reg 403/96

Insurance Act, R.S.O. 1990, c.I.8

Dispute Resolution Practice Code—Fourth Edition, Rule 9.1(c), 9.8, 37.7

Discussion

Dukaj did not attend the pre-hearing discussion, and it was carried on despite his absence.  Following that, Dukaj was properly notified about the purposes of this hearing and what would ensue in his absence.

Because there is no reason to believe that the notifications were lost as Dukaj did not inform FSCO about changes to his address or contact information, the Commission is satisfied that proper notice of the motion and hearing was served at his last known address, according to Rule 9.1(c) of the Dispute Resolution Practice Code (the “Code”).  The motion and arbitration hearing continued in his absence, pursuant to Rule 37.7 of the Code.

Also, since Dukaj did not contest to the withdrawal request of Lofranco Corriero Personal Injury Lawyers, the Commission accepts that the solicitor-client relationship was broken.  The firm is permitted to be removed, with no terms, pursuant to Rule 9.8 of the Code.

Lastly, the onus of showing that he is entitled to the benefits claimed still rests with Dukaj.  As he did not attend the hearing, there was no evidence available to give his claims support.

Conclusion

The arbitration was dismissed.

Significance

In addition to being a good example of an arbitration decision resulting in a dismissal, this case is demonstrative of a few rules in the arbitration process:

  • Demonstrates the application of Rule 9.1(c) of the Code, which gives the Dispute Resolution Group (the “Group”) the right to rely only upon the last know contact information for communications.
  • Demonstrates how Rule 37.7 of the Code gives the right to the Group to continue the hearing as scheduled if neither parties notify the Group of a different agreed upon time and date, within 20 days after the date of notice is issued.
  • Acknowledges that representatives should have the right to be removed from record should a solicitor-client relationship break down, pursuant to Rule 9.8 of the Code.
  • Recognizes that the applicant has the burden to attend the hearing and provide evidence in support of his claims.
Hermione is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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