Neutral Citation: 2000 ONFSCDRS 137

FSCO A98-001232

BETWEEN:

RIMMA DOBKINA

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: William J. Renahan

Heard: Written submissions received on June 19 and July 5, 2000.

Appearances:

Jadranka Cavrak for Mrs. Dobkina

Darrell P. March for Commercial Union Assurance Company

Issues:

The Applicant, Rimma Dobkina, was injured in a motor vehicle accident on June 12, 1997. In a decision dated March 6, 2000, I dealt with her claims for statutory accident benefits under the Schedule.¹ I dismissed her claim for housekeeping expenses of $10,620 and medical expenses of $4,502. I allowed a claim of $125 for a medical certificate and $925 on a claim of $1,850 for a medical assessment. I reserved judgment on the issue of expenses pending submissions if the parties could not agree on the issue.

The parties could not agree on the issue of entitlement to expenses of the arbitration proceeding and made written submissions.

The issue in this further hearing is:

Is Mrs. Dobkina entitled to her expenses incurred in respect of this arbitration hearing?

Result:

Mrs. Dobkina is entitled to her expenses of the arbitration proceeding.

ANALYSIS:

The criteria for determining entitlement to expenses of the arbitration proceeding are prescribed by regulation² as follows:

(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 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.
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.

The hearing took place over three days. The applicant called six witnesses. The insurer did not call any witnesses.

Each party submitted that they were successful in the arbitration. Although I awarded the applicant only $1,050 plus interest on a claim of more than $17,000, I find that the applicant was successful. She had to commence and carry through with the arbitration proceeding in order to recover what I found she was entitled to. She was therefore successful.

Normally, a three day hearing to recover $1,050 is excessive. However, the issues of entitlement to housekeeping expenses and medical expenses were not without merit and were worth pursuing along with the claim for the medical certificate and assessment. The arbitration was not frivolous, although I did not find the expert testimony of Dr. Brian Alpert or Mr. Bill Arvanitis helpful³.

A few days before the hearing, Commercial Union offered Mrs. Dobkina $2,500 in exchange for her releasing it from all claims arising out of the motor vehicle accident. Commercial Union argued that it offered Mrs. Dobkina more than I awarded her.

If Mrs. Dobkina did not purchase optional coverage, she has $100,000 in medical and rehabilitation coverage under her policy with Commercial Union for claims arising out of this accident for ten years after the accident, up to June 2007. I have no jurisdiction to deal with future claims and no knowledge of whether Mrs. Dobkina will have future claims arising from the accident under the medical and rehabilitation provisions of her policy. Therefore, I cannot determine whether $1,450⁴ is a fair amount to give up her rights under the policy. I therefore attach little weight to the offer. Had the offer related only to the issues of the arbitration proceeding, I would have attached more weight to it.

In these circumstances, I find it appropriate to award Mrs. Dobkina her expenses of the arbitration proceeding.

If the parties cannot agree on the amount of expenses, I direct them to rule 77.1 of the Dispute Resolution Practice Code which deals with assessment of expenses.

July 25, 2000

William J. Renahan Arbitrator

Date