Thi Nang Nguyen and State Farm Mutual Automobile Insurance Company 2014

FACTS

The Applicant (Nguyen), claims to have been injured in a motor vehicle accident on August 28, 2010 and has applied for accident benefits from the Respondent (State Farm). When disputes arose which were unable to be resolved through mediation Nguyen applied for arbitration on April 2013 at Financial Services Commission of Ontario (FSCO). A prehearing conference was scheduled for March 12, 2014 on September 9, 2013 and all parties were notified. On September 11, 2013 counsel for the Applicant, Mr. Druxerman informed FSCO that he was no longer representing Nguyen and that Nguyen wished to withdraw her application. FSCO replied on September 19, 2013 that they had not complied with the withdrawal.

On March 12, 2014 the pre-hearing took place and only State Farm attended. FSCO contacted Nguyen at her last known address and gave her until April 17, 2014 to enter a submission which she did not do.[1]

 

HISTORY/ LAW

Relying on rules with the Dispute Resolution Practice Code s. 9.7 (Code) which outlines the rules for a Representative as follows:

A representative who seeks to withdraw from a proceeding must:

(a) provide a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding; (b)provide the last known address, telephone number and (if any) e‑mail address of the represented party.[2]

The further relied on rule 70 of the Code which states:

70. Withdrawal

70.1 A party may seek permission to withdraw all or part of a dispute by: (a) serving a request to withdraw on all parties; and

(b) filing the request to withdraw together with a Statement of Service in Form F; or

(c) making an oral request to withdraw all or part of a dispute during a neutral evaluation, pre- hearing discussion, settlement discussion, preliminary conference or at a hearing.[3]

 

ISSUE

1. Should this application be dismissed without a hearing because it is frivolous, vexatious or was commenced in bad faith in accordance with Rule 68 of the Dispute Resolution Practice Code?

2.  Is the Insurer, State Farm, entitled to its expenses and what amount?

 

RULE

To determine if the action was frivolous and vexatious, the efforts of the Applicant were applied.

 

ANALYSIS

The Financial Services Commission of Ontario is in place to hear disputes in regards to personal injuries which generally occur between an individual and an insurance company. There have a two step process, a pre-trial hearing and the hearing of which both parties, the Applicant and the Respondent (the Insurer) are to provide submissions as to the facts, issues and possible outcomes that they are seeking.

As the Financial Services Commission of Ontario only received the initial application from Nguyen and no subsequent evidence they made the only decision possible. The Financial Services Commission of Ontario made every effort to give the Applicant more time to bring forward this information for the submissions.

 

CONCLUSION

The Financial Services Commission of Ontario determined that the Applicant did not commence the action in bad faith but determined that the Applicant had manifested no interest in pursuing the claim. The Arbitrator for FSCO granted the motion set out by State Farm to dismiss the application and allowed State Farm to make there only submission in regards to cost. He further determined that it was reasonable to award State Farm some of the costs claimed but not the excessive amount suggested.

State Farm the Respondent was given $1,000.00 inclusive of fees, disbursements and taxes.[4]

[1] https://www5.fsco.gov.on.ca/AD/4206p

[2] Dispute Resolution Practice Code DRPC Fourth Edition – Updated January 2014

[3] https://www.fsco.gov.on.ca/en/drs/DRP-Code/Documents/DRPC-Fourth-Edition-Collected-JAN-2014.pdf

[4] https://www5.fsco.gov.on.ca/AD/4206p

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

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