In Shaazil Khan v. State Farm Automobile Insurance
Company FSCO A13-014868, Arbitrator Charles Matheson awarded
expenses against the claimant after a withdrawal two weeks prior to
The subject accident occurred on April 26, 2011. The claimant
was a 6-year old minor. Fractures were allegedly sustained as a
result of the accident but were unsupported by the medical
evidence. Objective evidence of impairment was absent. The disputed
issues on the Application for Arbitration included attendant care
and non-earner benefits.
An Assessment of Attendant Care Needs (Form 1) endorsed 24 hour
supervision in the monthly amount of $3,300.00. The insurer's
responding Form 1 concurred with the level of supervision on the
basis that such supervision was ordinarily required for 6-year old
children, not on the basis of any accident injuries. The
claimant's representative failed to produce proof of incurred
The claim for non-earner benefits was untenable as the minimum
age requirement for the applicability of the said benefits is age
The claimant's representative withdrew the application on
December 18, 2015. Arbitration was scheduled for January 4 to 6,
2016. Counsel for State Farm Mutual Automobile Insurance Company,
Nicholaus de Koning, pursued expenses.
Arbitrator Matheson quoted the applicable criteria for expenses
under Rule 75 of the Dispute Resolution Practice Code
including the following:
(d) conduct of a party or a party's representative that
tended to prolong, obstruct or hinder the proceeding, including a
failure to comply with undertakings and orders;
(e) whether any aspect of the proceeding was improper, vexatious
Arbitrator Matheson then referred to the discretion of the
arbitrator in withdrawal disputes under Rule 70.3:
70.3 Where a party does not agree to the withdrawal, an adjudicator
(a) permit the withdrawal on such terms and conditions as he or she
(b) award expenses to either party as permitted by Rule 75 and
Payment was ordered in the amount of $3,172.50, inclusive of HST
and adjusted at Legal Aid Rates, for the costs of two senior
lawyers, a junior associate and two law clerks. The expenses were
to be paid by the claimant's litigation guardians.
The take-away: withdraw before it is too late. Cost consequences
may follow from untimely withdrawals of meritless claims. It is
reasonably expected that this decision in addition to all decisions
under the Financial Services Commission of Ontario, though not
binding, will guide and inform future decisions under the Licensing
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