Neutral Citation: 2000 ONFSCDRS 132

FSCO A99-000592

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DALE POOLER

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION ON EXPENSES

Before:

M. Kaye Joachim

Heard:

Written submissions were received on June 28, 2000

Gary William Sherwood for Mr. Pooler

William A. McClelland for Guardian Insurance Company of Canada

Issues:

The Applicant, Dale Pooler, was injured in a motor vehicle accident on May 27, 1995. In a decision dated October 18, 1999, 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. Pooler is not entitled to accident benefits because he did not have a reasonable excuse for failing to notify Guardian of his claim for benefits under section 59 of the Schedule.

The issues in this further hearing are:

Is Mr. Pooler entitled to his expenses incurred in respect of this arbitration hearing?
Is Guardian entitled to its expenses incurred in respect of this arbitration hearing?

Result:

Neither party is entitled to its expenses.

EVIDENCE AND ANALYSIS

In March 2000, Guardian asked to make submissions on its entitlement to expenses. The Commission has attempted unsuccessfully to contact Mr. Pooler and his counsel with respect to this issue. By letter dated June 15, 2000, counsel for both parties were invited to make submissions on the issue of expenses by June 30, 2000. I received submissions from Guardian on June 28, 2000. I received no submissions from Mr. Pooler's counsel.

Section 282(11) of the Insurance Act now allows expenses to be awarded to either the insured person or the insurer:

282.- (11) The arbitrator may award, according to the 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.

The criteria for awarding expenses are found in subsection 12(2) of O.Reg. 464/96, which states as follows:

12.- (2) 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:

Each party's degree of success in the outcome of the proceeding.
Conduct of the insurer or 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.
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.
The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.
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.
Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

Arbitrators must consider these legislated criteria, applying them to both parties. Concern for an insured's access to the dispute resolution system continues to play a significant role in the exercise of arbitral discretion in deciding entitlement to expenses.²

The issue in this case was whether Mr. Pooler had a reasonable excuse for failing to notify Guardian of his claim for benefits within 30 days after the circumstances that gave rise to the entitlement to benefits, or as soon as practicable thereafter, under section 59 of the Schedule.

The accident occurred on May 27, 1995. I found that the earliest that Mr. Pooler could be considered to have given Guardian any notice of his claim was July 1997, when he authorized a physiotherapy clinic to invoice Guardian in respect of physiotherapy treatment he began in May 1997. I found that Mr. Pooler did not have a reasonable excuse for this delay of over two years. Further I specifically rejected Mr. Pooler's evidence about his alleged attempts to serve Guardian with a statement of claim in May 1997.

The following factors influenced my decision to exercise my discretion against awarding expenses to Mr. Pooler. He was unsuccessful in establishing a reasonable excuse under section 59. He took several positions which were not supported on the evidence, and his evidence was found to be unreliable in several respects. His case did not raise any complex or novel issues. The only factual issues raised were decided against Mr. Pooler and he ought reasonably to have been aware that the evidence in support of his position was quite weak.

The following factors influenced my decision to exercise my discretion against awarding expenses to Guardian. Although Mr. Pooler was unsuccessful, his position that he had a reasonable excuse for the delay in giving notice was not unreasonable. The arbitral case law supports a generous approach to the determination of what amounts to a reasonable excuse under section 59. The hearing was conducted efficiently and took only one day. Mr. Pooler has limited financial resources and I am concerned that an award of expenses to Guardian would deter Mr. Pooler and other applicants in similar circumstances from filing meritorious claims. The need to ensure accessibility to the dispute resolution system inclines me against awarding Guardian its expenses.

The parties shall bear their own expenses of the arbitration process.

July 17, 2000

M. Kaye Joachim Arbitrator

Date