Frima Olszynko v. Dominion of Canada General Insurance Company, 1999 ONFSCDRS 165

Neutral Citation: 1999 ONFSCDRS 165

FSCO A97-001495

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FRIMA OLSZYNKO

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

and

DECISION CORRECTION

Before: Nancy Makepeace

Heard: Written submissions were received dated March 26, April 8, May 21, June 25 and July 15, 1999.

Appearances:

William J. Sammon for Mrs. Olszynko

Paul W. Muirhead for Dominion of Canada General Insurance Company

Issues:

The Applicant, Frima Olszynko, was injured in a motor vehicle accident on January 12, 1994. In a decision dated February 22, 1999, I dealt with her claims for statutory accident benefits under the Schedule.¹

I made the following orders:

1. The Applicant's residual earning capacity is $22,862 per year, or $439.65 per week, as determined by the Designated Assessment Centre residual earning capacity assessment. Accordingly, she is entitled to loss of earning capacity benefits of $172.85 per week from January 19, 1996 and ongoing, indexed in accordance with section 80 of the Schedule.

2. The Applicant is entitled to medical benefits totalling $1,810.33.

3. The Applicant is entitled to housekeeping expenses totalling $3,450.

4. The Insurer was not entitled to terminate benefits on October 14, 1997.

5. Interest is payable on benefits owing under section 68 of the Schedule.

6. The Applicant is entitled to a special award of $5,000, plus interest, under subsection 282(10) of the Act.

7. If the parties are unable to agree on expenses, the issue may be resolved in accordance with Rules 73-77 of the Dispute Resolution Practice Code and Ontario Regulation 664, R.R.O. 1990, as amended by Ontario Regulation 464/96.

The parties were unable to agree whether the Applicant should be awarded her expenses or the recoverable amount. The issues in this further hearing are:

1. Is the Applicant entitled to her expenses incurred in respect of this arbitration hearing?

2. If so, what is the amount of expenses to which the Applicant is entitled?

The Applicant also raised two substantive issues:

3. What is the amount of the interest portion of the Applicant's special award?

4. Is the Applicant entitled to ongoing payment of her Loss of Earning Capacity Benefit pursuant to section 33 of the Schedule?

Result:

1. The Applicant is entitled to her arbitration expenses, to be paid forthwith.

2. The amount of expenses payable is $19,048.46.

3. Paragraph 4 of the order of February 22, 1999 is rescinded and the following substituted: Dominion shall pay Mrs. Olszynko a special award of $5,000 inclusive of interest.

4. A pre-hearing and hearing will be scheduled to deal with Mrs. Olszynko's entitlement to loss of earning capacity benefits pursuant to section 33 of the Schedule.

EVIDENCE AND ANALYSIS:

Arbitration expenses: the law

As the application for appointment of an arbitrator was filed after November 1, 1996, the amendments to the expense provisions that took effect that day apply. Subsection 282(11) of the amended Insurance Act is as follows:

The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

Ontario Regulation 664, as amended by Ontario Regulation 464/96, prescribes the criteria:

An arbitrator may award expenses to an insurer or insured person under subsection 282(11) of the Act if the arbitrator is satisfied that the award is justified, having regard to the following criteria:

1. Each party's degree of success in the outcome of the proceeding.

2. Conduct of the insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders.

3. Whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.

4. The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.

5. If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of the arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the responses to the offers, having regard to the result of the proceeding.

6. Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

Analysis

Neither party took any position that was manifestly unfounded, frivolous, vexatious or fraudulent. Both parties conducted their cases efficiently, competently and in a manner consistent with the Dispute Resolution Group's mandate of providing "the quickest, most just and least expensive resolution of the dispute."² Nothing in the conduct of either party tended to shorten or prolong the process.

The Applicant submitted that she should be awarded her expenses because she was "generally successful in the arbitration," prosecuted the arbitration in good faith and "in a businesslike and timely fashion," and raised issues which were "complex, novel and significant."

The Insurer submitted that each party should bear its own expenses. The Insurer agreed that "there was a degree of complexity or novelty" in the issues raised, but disputed the Applicant's characterization of the outcome. I agree with the Insurer that "both parties achieved some degree of success." On the main issue, the Applicant failed to establish that she was entitled to a greater loss of earning capacity benefit ("LECB") than was recommended by the residual earning capacity designated assessment centre ("REC DAC") and accepted by the Insurer. However, she succeeded in establishing that the Insurer was not entitled to terminate benefits on October 14, 1997 on the basis of her failure to attend a medical-rehabilitation DAC assessment. I awarded a special award of $5,000 because of the Insurer's improper termination of benefits. The Applicant also proved her entitlement to the medical expenses and housekeeping expenses she claimed.

The law as it stood before November 1, 1996 allowed arbitrators to award expenses to the insured person, but not to the insurer.³ The leading case was Allison and Markel Insurance Company of Canada (P-001231, August 21, 1996), in which Director's Delegate Naylor made the following comments:

. . . . In civil cases, while costs are in the discretion of the court, the general rule is that costs follow the result. In McCormick, it was held that the issue of expenses should be approached from the particular perspective of the purpose and goals of the dispute resolution process and that the principles governing court costs do not necessarily apply:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

(McCormick, page 23)

Because facilitating access to the process was regarded as a fundamental goal, an approach that necessarily withheld payment of expenses from unsuccessful applicants was considered counter-productive and alternative criteria were suggested:

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

(McCormick, page 24)

The principles set out in these paragraphs were endorsed "in the main" by the Director of Arbitrations in the appeal decision, Calogero and The Co-operators General Insurance Company, (February 13, 1992, OIC P-000251).⁴ The Director's choice of language recognises the discretionary nature of the award and leaves some flexibility in the principles to be applied.

The principle that applicants with legitimate claims, conducted reasonably, can expect to recover their allowable expenses, win or lose, has been adopted in numerous subsequent decisions, and can be taken to be the basic ground rule. While arbitrators have uniformly accepted this general principle, they have built on the criteria set out in McCormick. Expenses have been denied, for example, where the claim is found to have been without any merit,⁵ in the case of fraud⁶ or dishonesty⁷ or when documents have been fabricated.⁸

This approach was followed and applied in numerous arbitration and appeal decisions. Whether it remains the correct approach under the amended expenses provisions has recently been considered in several arbitration and appeal decisions.

In Gray and Zurich Insurance Company,⁹ Arbitrator Alves noted that despite the amendments to the expense provisions,

the [statutory accident benefit] scheme continues to provide statutory accident benefits as part of every policy of automobile insurance. Under this scheme, insurers and insured persons are considered to be in a first party relationship, since either the applicant, or someone else has paid for this coverage on his or her behalf.

The scheme provides for mandatory mediation of disputes relating to statutory accident benefits, where the parties, with the assistance of a neutral third party, can resolve many of their disputes concerning entitlement to and the amount of statutory accident benefits. Mediation can be initiated by either the insurer or the insured person. However, under the Act, only the insured person may apply for arbitration at the Financial Services Commission.¹⁰

The Legislature has addressed the differing abilities of the parties to bear the cost of the disbursements and legal fees in order to participate in an arbitration at the Commission. Currently, insured persons pay a filing fee of $100 to commence an arbitration, while insurers pay $3,000 to participate in an arbitration.¹¹ While arbitrators now have the power to award legal fees in respect of the arbitration to either party at the Legal Aid rate, the arbitrator also has a discretion to increase the amount of the hourly rate for legal fees to counsel for the insured person only, to $150 per hour.¹² For these reasons, I conclude that the statutory scheme continues to be one "designed to facilitate applicants' access to a speedy adjudication of disputes."¹³

On appeal, Director's Delegate Draper made the following comments:

In my view, the new expense provisions signalled a change. Although most of the criteria have been discussed in earlier decisions, the analysis was affected by the fact that only one party could be awarded its expenses. Arbitrators now have an obligation to consider the legislated criteria, including the result, applying them to both parties. However, I agree with the arbitrator that the criteria do not reflect a move to the kind of results-based approach used by the courts. Success is only one criterion in an open-ended list and, therefore, must be weighed against the other relevant considerations. I also agree with the arbitrator that the criteria, specifically clause 6, leave room for concerns about the access to the dispute resolution system. One aspect of accessibility is that insured persons should have a reasonable opportunity to raise novel issues of interpretation, particularly those of general importance.¹⁴

I agree with this approach, which I am bound by in any event.

I find this an appropriate case for the exercise of my discretion to award the Applicant her arbitration expenses, considering her partial success, the significant factual and legal issues she raised, and her conduct of the proceeding.

The amount of expenses

Schedule 1 of the Dispute Resolution Practice Code ("the Expenses Schedule") prescribes the expenses a party may recover.¹⁵ The Insurer made no submissions with respect to the amounts claimed.

Legal fees:

The Applicant claimed legal fees of $14,580 for the services of her counsel, Mr. Sammon, billed at $150 per hour for 97.2 hours, plus $448 for 11.2 hours of a student's time at $40 per hour.

The Applicant's bill of costs includes "preparation for and attendance at mediation covering three days including preparation of Exhibit Book." Subsection 3(1) of the Expenses Schedule provides for payment of legal fees:

3. (1) The legal fees payable by the insured person or the insurer for the following matters may be awarded:

4. For all services performed before an arbitration, appeal, variation or revocation hearing.

5. For the preparation for an arbitration, appeal, variation or revocation hearing.

6. For attendance at an arbitration, appeal, variation or revocation hearing.

7. For services subsequent to an arbitration, appeal, variation or revocation hearing.

There is no reference to mediation proceedings. It is long settled that mediation expenses are not recoverable.¹⁶ I heard nothing in this case to persuade me to depart from this view.

The Applicant's bill of costs does not indicate how many hours of legal work were attributable to mediation, though the bill of costs indicates that mediation occurred over three days and included preparation of an exhibit book. I assume that the mediation consisted of a number of telephone calls, that it occurred over a number of days but did not require three full days, and that preparation of the exhibit book also assisted the Applicant in preparation for the arbitration. I find it appropriate to reduce the Applicant's bill of costs by 3 hours to reflect work done in respect of the mediation. The hearing lasted 2½ days — about 15 hours in total — and detailed submissions were completed in writing after the hearing. I find 94.2 hours a reasonable amount of time for hearing preparation and attendance, considering the nature of the case.

The Applicant claimed $150 per hour for her counsel's services. Mr. Sammon was called to the bar in 1976, and accordingly is entitled to $83.75 per hour under the Legal Aid Tariff. However, Rule 76.1 of the Dispute Resolution Practice Code permits an arbitrator to award up to $150 where the arbitrator is satisfied that it is justified. The Insurer made no submissions on this point. I am satisfied that the higher rate is justified given the nature of the case, and Mr. Sammon's very competent representation of his client, which facilitated the hearing process.

Given the reasonable number of counsel hours billed for arbitration preparation and attendance, I have no difficulty with the bill for 11.2 hours of a student's time at $40 per hour.

Disbursements:

In addition to the arbitration filing fee of $100, the Applicant seeks reimbursement for photocopying, preparation of medical reports, and expert witness preparation and attendance.

The flat fee of $150 for photocopying seems reasonable given the volume of exhibits in this matter.

The Expenses Schedule permits me to award up to $1,500 for preparation of an expert's report, and up to $500 for preparation of an expert who testifies at the hearing.¹⁷ An expert who attends at a hearing may be awarded $200 per hour, to a maximum of $1,600 per day.

The Applicant claims $1,500 for the February 16, 1998 report of Dr. Martin Gillen, a physical medicine and rehabilitation specialist.¹⁸ Dr. Gillen's 14-page report included a comprehensive review of the documentation, a review of the surveillance videotapes, a history of the Applicant's complaints and treatment, and Dr. Gillen's opinion as to diagnosis, causation and prognosis. I allow the maximum of $1,500 for the report.

The Applicant also bills $1,284 for Dr. Gillen's attendance at the arbitration. I have no difficulty with Dr. Gillen's bill of $200 for one hour's hearing preparation. However, my hearing notes indicate that he testified for 2 hours (not 5) between 10:00 and 12:00 on May 20, 1998. Accordingly, I allow $400 — 2 hours at $200 per hour — for Dr. Gillen's attendance at the hearing.

Dr. N.C. Natarajan billed $750 for hearing preparation and attendance. My hearing notes indicate that she testified for 45 minutes on May 20, 1999; I am prepared to allow another 15 minutes for discussions with counsel before testifying. Accordingly, she is entitled to $200 for one hour's hearing attendance. In the absence of any detailed evidence about her preparation before the hearing, I am prepared to allow another $200 representing one hour's preparation.¹⁹ In fixing these expenses, I note that while I allowed Dr. Natarajan to be qualified as a chronic pain expert, I ruled that her lack of education and credentials would go to the weight given her testimony. However, I am also mindful that the Insurer required that she be made available for cross-examination.

Dr. Selwyn M. Smith, a psychiatrist, billed $450 for review of a medical file and preparation of his report of October 27, 1995. His four-page report summarized his treatment of the Applicant before and after the accident, and set out his diagnosis, prognosis and opinion as to causation and disability. I found it a useful and balanced report, and $450 is a reasonable bill.

Dr. C.J. Shamess, a rheumatologist, billed $400 for her report of November 26, 1995. The report gave a balanced and reasoned basis for the diagnosis of fibromyalgia. However, I find $400 excessive for a two-page report. I award $250.

The Applicant's bill of costs includes an entry of $141.20 for Dr. E.A. Deernsted, her family doctor. This was initially included in a list of fees for medical reports. As no invoice or particulars were provided, I invited the Applicant to file further documentation in support of this item. The Applicant filed an invoice from Dr. Deernsted setting out three items: $141.20 for a one hour "medical interview" on April 14, 1998, and on April 23, 1998, $200 for hearing preparation and $300 for half a day's court attendance. Dr. Deernsted did not testify at the hearing, which was held in May 1998. I heard no satisfactory explanation for the $141.20 item.

The Commission's process for resolving expenses disputes is set out in Rule 77 of the Dispute Resolution Practice Code (3rd ed.). Where the party paying expenses disputes the bill of costs presented by the party awarded expenses, the party awarded expenses must promptly provide "copies of supporting documentation, such as invoices, receipts, computerized dockets or cancelled cheques." If a dispute remains, the parties are to file these documents with the Commission. The onus is on the party awarded expenses to provide sufficient particulars to allow the arbitrator to assess the item. I award no expenses in relation to Dr. Deernsted because the Applicant provided no particulars of these costs.

Expenses payable:

The total of allowable expenses is:

Legal fees:

Mr. Sammon 14,130.00

Student 448.00

GST 1,020.46

Subtotal: $15,598.46

Disbursements:

Arbitration filing fee $ 100.00

Photocopying fee 150.00

Dr. Gillen's report 1,500.00

Dr. Smith's report 450.00

Dr. Shamess' report 250.00

Dr. Natarajan's hearing preparation and attendance 400.00

Dr. Gillen's hearing preparation and attendance 600.00

Subtotal: $ 3,450.00

Total: $ 19,048.46

Interest on special award

There appears to be no dispute that interest is payable on overdue benefits at the rate of 2 percent per month, compounded monthly, pursuant to section 68 of the Schedule.²⁰ However, the parties disagree about the calculation of interest relating to the special award. I ordered the Insurer to pay "a special award of $5,000, plus interest under subsection 282(10) of the Act."

Authority to order a special award is found in subsection 282(10) of the Act, which is as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. [emphasis added]

The Applicant submits that she is entitled to her overdue benefits, plus interest on overdue benefits pursuant to section 68, plus interest on all amounts outstanding including the section 68 interest, pursuant to s. 282(10) of the Act. The Insurer disputes that subsection 282(10) requires payment of interest of "4% compounded monthly from the time the benefits first became payable." The Insurer claims interest is payable at 2 percent per month, compounded monthly.

The method of calculating a special award was considered in concurring decisions by Arbitrators Sampliner and Blackman.²¹ Both arbitrators held that the figure against which the 50 per cent maximum is applied includes interest awarded under the predecessor to section 68²² and interest awarded under s. 282(10). Arbitrator Blackman summarized his reasoning as follows:

This provision [subsection 282(10)] is ambiguous. It is unclear whether the compound interest is part of that figure against which a maximum of 50% is to be applied, or is over and above that amount. I agree with Arbitrator Sampliner that the latter interpretation:

limits the arbitrator's ability to adjust the size of the award to fit the insurer's conduct. Such a limitation of the arbitrator's ability to assess and control the size of the award is, in my opinion, repugnant to the intent of section 282(10) within the framework of the no-fault scheme.

I therefore agree with Arbitrator Sampliner that the arbitrator's discretion is to award up to 50 per cent of:

benefits awarded + two per cent simple interest under section 24(2) + two per cent compound interest.

I agree with this analysis. It follows that subsection 282(10) does not provide for a further award of interest to be paid on the lump sum award. Arbitrators have generally applied this reasoning by awarding a lump sum amount inclusive of interest."

I held that the Applicant was entitled to loss of earning capacity benefits ("LECBs") of $172.85 per week, from January 19, 1996, indexed in accordance with section 80 of the Schedule. I ordered a special award because I found that the Insurer's termination of the Applicant's LECBs in October 1997 was improper. I calculate the principal amount of LECBs outstanding as of the date of the decision to be approximately $12,400. Interest under section 68 of the Schedule and subsection 282(10) of the Act raises the amount payable to approximately $17,000. I find that an award of $5,000 inclusive of interest — about 30 percent of $17,000 — fairly reflects the factors I considered in making the award. The order will be corrected accordingly.

To clarify, I find that the Applicant is entitled to her overdue benefits, plus interest of 2 per cent per month, compounded monthly, pursuant to section 68 of the Schedule, plus interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule," plus a lump sum of $5,000.

Ongoing payment of loss of earning capacity benefits

Paragraph 33(1)(a) of the Schedule says that the Insurer "shall review the amount of the weekly loss of earning capacity benefit" three years after it was first paid.²³ Subsection 33(3) sets out the possible consequences of the review:

33(3) After each review, the insurer shall,

(a) if the insurer believes there has been no material change in the ability of the person to earn the amount that is being used for the purpose of determining the person's residual earning capacity, offer to continue to pay the person a weekly loss of earning capacity benefit in the same amount as the person's current benefit; or

(b) in any other case, offer to pay the person a weekly loss of earning capacity benefit in an amount determined under section 28 based on the insurer's estimate of the person's current residual earning capacity determined in accordance with section 30 and specified in the offer.

Subsection 33(5) says that "sections 21 to 30 apply, with necessary modifications."

On January 18, 1999, three years after the Applicant began receiving LECBs, the Insurer terminated her benefits pursuant to an offer under paragraph 33(3)(b). At the time she requested an expenses hearing, the Applicant advised that she is currently undergoing a REC DAC in relation to the new offer. She seeks an order that the Insurer continue to pay LECBs of $172.85 per week pending the receipt of the REC DAC report "or beyond."

A number of arbitration and appeal decisions have dealt with the issue of when an insurer may reduce benefits in accordance with its initial LECB offer under sections 21 and 23. No decision has dealt with the issue as it arises under section 33. An additional issue in this case is the interaction between section 33 of the Schedule and section 287 of the Act, the "protection of benefits" provision:

An insurer shall not, after an order of the Director or of an arbitrator appointed by the Director, reduce benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 or 284.²⁴

Rather than dealing with this novel issue in what is mainly an expenses hearing, I find it more appropriate that a further pre-hearing be arranged. If necessary, the hearing may be resumed to dispose of the three-year review issue.

August 27, 1999

Nancy Makepeace Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 165

FSCO A97-001495

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FRIMA OLSZYNKO

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Insurer shall pay the Applicant $19,048.46, being the amount of her allowable arbitration expenses, forthwith.

2. Paragraph 4 of the arbitration order of February 22, 1999 is rescinded and the following substituted:

The Insurer shall pay the Applicant a special award of $5,000, inclusive of interest.

3. Following a further pre-hearing, the hearing may be resumed with respect to the Applicant's entitlement to benefits pursuant to section 33 of the Schedule.

August 27, 1999

Nancy Makepeace Arbitrator

Date

If the arbitrator or Director is satisfied that there has been a material change in the circumstances of the insured or that evidence not available on the arbitration or appeal has become available or that there is an error in the order, the arbitrator or Director may vary or revoke the order and may make a new order if he or she considers it advisable to do so.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2Dispute Resolution Practice Code (3rd ed.), Rule 1.1.
3. 3Unless the arbitrator found that the Applicant commenced an arbitration that was frivolous, vexatious or an abuse of process, in which case the Insurer could be awarded its assessment fee under subsection 282(11.2) of the Act, which took effect on January 1, 1994. The Insurer does not rely on this provision in this case.
4. 4The Director stated, at page 9, that "In the main, I adopt this statement as to when expenses may be awarded to an applicant."
5. 5Boateng and CUMIS General Insurance Company, (August 29, 1995, A-006279), upheld on appeal, (July 22, 1996, OIC P-006279); Cooper and Jevco Insurance Company, (April 13, 1994, OIC A-005905).
6. 6Richardson and Royal Insurance Company of Canada, (November 3, 1992, OIC A-001141); Kosmopoulos and Victoria Insurance Company of Canada, (November 10, 1993, OIC A-002264), upheld on appeal (May 14, 1996, OIC P-002264).
7. 7Tagiran and Simcoe & Erie General Insurance Company, (August 15, 1994, OIC A-004660) upheld on appeal (February 26, 1996, OIC P-004660); Khanna and State Farm Mutual Automobile Insurance Company (January 6, 1994, OIC A-001665).
8. 8Ferrari and Royal Insurance Company of Canada, (September 8, 1994, OIC File A-007313).
9. 9(FSCO A97-001660, January 29, 1999). See also Athanasiadis and Zurich Insurance Company (FSCO A97-001239, October 2, 1998).
10. 10Section 281(1)(b)
11. 11O.Reg. 385/90, s. 9(b) prescribed an arbitration filing fee for insured persons of $50. O.Reg. 386/90, s. 1 prescribed an arbitration filing fee of $1,000 for insurers. The applicant's filing fee under O. Reg. 850/93 section 1 is currently $100. The insurer's assessment in respect of each arbitration under O.Reg. 107/97 is currently $3,000. See also the Dispute Resolution Practice Code—Part D, sections 1.1 and 2.3
12. 12Dispute Resolution Practice Code—Part A, section 76
13. 13McCormick op.cit.
14. 14Gray and Zurich Insurance Company (P98-00047, June 11, 1999).
15. 15Excerpt from Ontario Regulation 664, R.R.O. 1990, as amended by Ontario Regulation 464/96.
16. 16Ajzenstadt et al. and CAA Insurance Company (Ontario) et al., (OIC A-000185 et al. (February 6, 1992) confirmed on appeal, (OIC P-000185, July 13, 1992); Chamale and Wellington Insurance Company, (OIC A-000849, September 25, 1992) confirmed on appeal on another point (OIC P-00084, July 9, 1996); Edwards and State Farm Mutual Automobile Insurance Company, (OIC A-001707, July 12, 1993), confirmed on appeal on another point (OIC P-001707, February 26, 1996). A recent decision is Caputo and Allstate Insurance Company of Canada (FSCO A-950212, July 12, 1999).
17. 17Subsections 5(3), (4) and (5) of the Expenses Schedule.
18. 18Dr. Gillen billed the Applicant $2,941.64 for preparation of this report.
19. 19The Applicant's initial submissions included a letter from Dr. Natarajan, dated March 1, 1999, stating "Please find attached a bill of $750 for services rendered (attending the arbitration and preparing the case for hearing." As no bill was attached, I invited further particulars. However, I received only another copy of the covering letter and what appeared to be a receipt without particulars.
20. 20"If a payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly."
21. 21Beiler and Alpina Insurance Company, Limited (OIC A-003051, August 9, 1994) and Murray and Wawanesa Mutual Insurance Company (OIC A-003224, August 23, 1996), respectively.
22. 22Subsection 24(2) of the Statutory Accident Benefits Schedule — accidents before December 31, 1993.
23. 23Subsection 33(1)(b) requires a further review eight years after LECBs are first paid.
24. 24The adjudicator's powers on variation are set out in subsection 284(3):