Neutral Citation: 2000 ONFSCDRS 128
FSCO A98-000446
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HOSSEIN LOUVARZ
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
David J. Evans
Heard:
By submissions received March 9 and March 27, 2000
Appearances:
Robert Ipacs for Mr. Louvarz
D'Arcy McGoey for Dominion of Canada General Insurance Company
Issues:
The Applicant, Hossein Louvarz, was injured in a motor vehicle accident on March 1, 1997. In a decision dated February 25, 2000, I dealt with his claims for statutory accident benefits under the Schedule.1 I made the following orders, while reserving on the issue of expenses:
Mr. Louvarz is entitled to receive weekly income replacement benefits ("IRBs") from July 31, 1998 for a period of eight weeks pursuant to section 4 of the Schedule.
Mr. Louvarz is not entitled to receive any medical benefits claimed pursuant to section 14 of the Schedule.
Mr. Louvarz is entitled to receive $75 for the cost of examinations under section 24 of the Schedule.
Mr. Louvarz is not entitled to payments for housekeeping and home maintenance services claimed pursuant to section 22 of the Schedule.
The issue in this further hearing is:
Is Mr. Louvarz entitled to his expenses incurred in respect of this arbitration hearing?
Is Dominion of Canada entitled to its expenses incurred in respect of this arbitration hearing?
Result:
- Neither party shall have its expenses of the hearing
EVIDENCE AND ANALYSIS:
Rule 73.1 of the Dispute Resolution Practice Code provides that an adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 73.2.
Criterion (a) of Rule 73.2 relates to each party's degree of success in the outcome of the proceeding. Mr. Louvarz was largely unsuccessful, receiving approximately 10 percent of the total claimed. His housekeeping claims were denied, and he received only a portion of his income replacement benefits. On the other hand, it has been held 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.2
Criterion (b) relates to the 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. The case was presented concisely but both sides strategically withheld evidence until shortly before the hearing. Mr. Louvarz did not advise Dominion until shortly before the hearing that he worked after the accident and, on the other hand, Dominion did not deliver the surveillance reports until four days before the hearing. Earlier exchange of this information would have facilitated the proceeding.
Criterion (c) relates to 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. In my original decision, I did not accept his testimony without corroboration on the issues of housekeeping and attendant care because of his lack of credibility. His psychological tests demonstrated that he was malingering.
Criterion (d) relates to the degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding. This case was simple in all these aspects.
Criterion (e) relates to any offer to settle. Dominion did provide an offer to settle. However, the offer referred only to a full and final release on all claims for accident benefits. In addition, it was not made 10 days prior to the hearing, and it was not open for acceptance until the day of the hearing.
Criterion (f) relates to any other matter related to the proceeding that the adjudicator considers relevant to the issue of whether an award of expenses is justified. This criterion leaves room for concerns about 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.3 Mr. Louvarz raised no such novel issues here. I find that Mr. Louvarz's lack of credibility and malingering militates against him receiving his expenses. On the other hand, I find that Dominion is not entitled to its expenses, since Mr. Louvarz did have to proceed with the hearing to obtain the benefits to which he was entitled. I therefore find that neither party is entitled to its expenses of the hearing.
July 10, 2000
David J. Evans
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 128
FSCO A98-000446
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HOSSEIN LOUVARZ
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:
- Neither party shall have its expenses of this hearing.
July 10, 2000
David J. Evans
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
- Gray and Zurich Insurance Company, (FSCO A97-001660, January 29, 1999) and (FSCO P98-00047, June 11, 1999)
- Supra, see note 2.