Consequences of No-Show: A Case Study

Consequences of No-Show:  A Case Study

Thanikasalam v State Farm

FSCO A12-000791

July 7, 2014

Facts

On October 26, 2008, Mr. Velluppillai Thanikasalam (the “Applicant”) was injured in a motor vehicle accident. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) under the Statutory Accident Benefits Schedule. The parties’ subsequent mediation attempt failed to resolve their mutual disputes and Mr. Thanikasalam applied for arbitration.

On December 10, 2012, at the pre-hearing, the applicant applied for claims covering a variety of assessment expenses for services provided by Omni Evaluations whilst withdrawing from his other claims for income replacement benefits and housekeeping benefits. An arbitration hearing was set for November 12, 2013.

On November 12, 2013, Mr. David Carranza attended on behalf of the Applicant, Mr. Thanikasalam who was absent and Mr. Schrieder represented State Farm. Mr. Carranza presented a motion to be removed from record as representative for the applicant as he could not contact his client. State Farm requested a dismissal of the applicant’s claims.

Issues

1.  Should Mr. Carranza be removed from the record as representative of Mr. Thanikasalam?

2.  Should Mr. Thanikasalam’s claims be dismissed?

Law

Insurance Act, R.S.O. 1990, c.1.8

Dispute Resolution Practice Code

The Rules of Professional Conduct of the Law Society of Upper Canada

The Statutory Powers Procedures Act, s. 7(1)

Decision

1.  Mr. Caranza’s request to be removed from record as representative of Mr. Thanikasalam is denied

2.  Mr. Thanikasalam, the applicant’s claims were dismissed.

3.  State Farm is entitled to expenses relating to this matter.

Reasons of Decision

Mr. John Wilson (the Abritrator) determined that with no prior application by the applicant’s council to be removed from file as representative on record until the hearing, Mr. Carranza “forfeited” the right to be removed. Mr. Wilson found no evidence that the applicant had discharged Mr. Caranza; hence, as according to r. 9.8 of the Dispute Resolution Practice Code and under the Rules of Professional Conduct of the Law Society of Upper Canada and jurisprudence, Mr. Wilson, at his own discretion denies Mr. Caranza request to be let off the record.

The applicant’s claims were dismissed as he did not appear at the hearing and failed to provide supporting evidence for his claims. As the burden of proof rested on Mr. Thaikasalam, the arbitrator found no basis for findings in favour of his claims for benefits under The Statutory Powers Procedures Act, s. 7(1).

Mr. Wilson, at his discretion awarded costs to State Farm as set out in the Expense Regulation [8] which governs costs awards at FSCO because of the failure of the applicant to withdraw his claim in a timely manner, as he obviously had no intention of pursuing it further. This is to punish the needless expenditures in time and resources by parties who had prepared and did attend.

Significance

Thanikasalam v. State Farm demonstrates that it is unwise to abuse the legal system with frivolous claims as set out in the Cunningham Report, under recommendation 8, “a claimant or insurer who abuses the process should be required to pay all or part of the settlement meeting and arbitration fees of the other party.”

Pagan is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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