Neutral Citation: 2000 ONFSCDRS 152
FSCO A97-001771
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
WAYNE CLIPPERTON
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION ON A MOTION FOR INTERIM EXPENSES
Before:
David J. Evans
Heard:
By telephone conference call on August 11, 2000.
Written submissions were received on June 21, July 25 and August 2, 2000.
Appearances:
Gordon Good for Mr. Clipperton
Ian M. Boundy for Zurich Insurance Company
Issues:
The Applicant, Wayne Clipperton, was injured in a motor vehicle accident on February 8, 1996. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.1 Zurich terminated weekly income replacement benefits on December 31, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Clipperton applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The arbitration hearing commenced on May 9, 2000, but was not completed and will resume on September 5, 2000.
Mr. Clipperton has brought a motion pursuant to section 65 of the Dispute Resolution Practice Code — Third Edition for interim expenses to be paid to him pending the resolution of his dispute with Zurich.
The issue on this motion is:
- Is Mr. Clipperton entitled to interim expenses pursuant to section 282(11.1) of the Insurance Act?
Result:
Subject to my further Order as to expenses at the conclusion of the hearing, Zurich shall pay Mr. Clipperton interim expenses in the amount of $8,503.20 by September 5, 2000.
If the parties are unable to agree on the expenses of this motion, that issue is deferred until the issue of expenses of the hearing is addressed.
EVIDENCE AND ANALYSIS:
Section 282(11.1) of the Insurance Act provides as follows:
The arbitrator may at any time during an arbitration proceeding make an interim award of expenses, subject to such terms and conditions as may be established by the arbitrator.
Mr. Clipperton has applied for an interim award of expenses. His affidavit, sworn on June 16, 2000, reads in part as follows:
On February 8, 1996 I was involved in a motor vehicle collision in which the driver's side of my automobile was struck by another vehicle which was proceeding through a red light.
Following medical treatment and a short period of time off work, I attempted to return to work as a taxi driver on a 24 hour lease. I was unsuccessful in my attempt and loss of income payments were made by my insurer Zurich Insurance Company until December 31, 1996 when Zurich ceased to pay benefits based on the opinion of Dr. Clifford following a September 5, 1996 Insurer Examination, Dr. Lacerte following a December 9, 1996 disability DAC assessment and the subsequently obtained opinion of Dr. Yufe, neurologist and Dr. Judith Shapiro, psychologist.
Following the decision to discontinue my loss of income benefits and my inability to work and my subsequent discectomy surgery January 16, 1998, I have been unable to support myself and as a result have been forced to obtain general welfare assistance.
The arbitration in this matter commenced May 9, 2000 and was not completed. Attempts to reschedule the arbitration quickly were unsuccessful, in part, as a result of the inability of the solicitor for Zurich to be available for the suggested dates.
This matter is currently scheduled to reconvene September 5, 2000 with the possibility that there may be insufficient time to complete the evidence in view of the uncertainty as to what evidence, if any, will be called by Zurich. I further have no information as to the length of time necessary for the decision to be released.
It has been necessary for me to incur significant disbursements in order to comply both with the request for documentation requested by Zurich and in order to adequately and properly prepare for the arbitration.
Zurich has denied further benefits alleging that there is no causal connection between the injuries suffered in the February 8, 1996 collision and my disability notwithstanding the neurosurgery performed by Dr. Barr and his opinion.
It has been necessary to obtain psychological opinions as a result of the allegations advanced by Zurich and to obtain further opinions on the issue of causation. It has been necessary to call as a witness Dr. Finestone to deal with the reports of both Drs. Clifford and Lacerte.
Zurich has obtained an opinion from an accountant as to the quantum of the Weekly Income Benefit and it has been necessary to obtain an accountant's opinion to respond. Based on the opinion obtained by the accountant I have retained, the accountant for Zurich agrees that a larger benefit is payable.
Attached to the Affidavit is a list of the expenses claimed totalling $9,116.01, including the expense for Dr. Finestone's preparation and attendance at the hearing. Dr. Finestone testified that Mr. Clipperton's ongoing low back, neck and parascapular pain, as well as his headaches and leg numbness, have occurred as a direct result of the February 8, 1996 motor vehicle accident.
This case appears to be on all fours with the Adu-Agyei case on interim expenses recently decided by Arbitrator Alves.2 As in that case, Mr. Clipperton's case is not yet completed; his cross-examination is still to begin. I agree with Arbitrator Alves that it would be premature to express an opinion on the merits at this point and that the Bernicky3 criteria are appropriate despite amendments to the legislative scheme since that case was decided4:
The Bernicky criteria are that the application raises a bona fide issue; the expenses sought are reasonable and necessary for the conduct of the arbitration; and the applicant is unable to carry the expenses of the arbitration. These criteria have been adopted by many arbitrators when determining whether to award interim expenses to an applicant.
I do not agree with counsel for Zurich that the appropriate criteria are set out in the Brown and Gomez cases, as they dealt with awards of interim benefits.5
I find that at a minimum the evidence of Dr. Finestone establishes a bona fide issue. Although, as counsel for Zurich submitted, Dr. Finestone testified that the sequelae of the disc problems constitute only about 25 per cent of Mr. Clipperton's problems, it may be that this percentage is sufficient for the criteria set out in Athey v. Leonati et al.6 In any event, that will be a matter for my later evaluation; at this point I am satisfied that Mr. Clipperton has met the bona fide issue test.
Turning to the reasonableness and necessity of the expenses, counsel did not object to most of them, as they generally relate to clinical notes and records, medical reports, and witness attendances. However, counsel for Mr. Clipperton applied seven per cent GST to the total. I do not have the invoices, so I do not know if GST was already included in some of them, nor is it clear to me that GST would apply to all the items. Counsel for Zurich pointed out that Zurich reproduced the videotapes, so it is unclear why the $46 charge for the reproduction appears in the disbursements. Regarding other objections raised by counsel for Zurich, however, I note that the Expense Regulation does allow for courier expenses but does not set a specific amount for photocopying. Accordingly, I find that a reasonable total for the invoices is $8,503.20.
Finally, I find that Mr. Clipperton is unable to carry the expenses of the arbitration. As in Adu-Agyei, he is on social assistance, he remains liable for the disbursements, and it may be several more months before there could be a determination on the expenses.
Zurich shall pay the total of $8,503.20 on an interim basis by the first day of the hearing resumption, namely by September 5, 2000.
EXPENSES:
The question of expenses of this motion is deferred until the issues raised in the arbitration have been decided.
August 22, 2000
David J. Evans
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 152
FSCO A97-001771
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
WAYNE CLIPPERTON
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282(11.1) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Subject to my further Order as to expenses at the conclusion of the hearing, Zurich shall pay Mr. Clipperton interim expenses in the amount of $8,503.20 by September 5, 2000.
If the parties are unable to agree on the expenses of this motion, that issue is deferred until the issue of expenses of the hearing is addressed.
August 22, 2000
David J. Evans
Arbitrator
Date
Footnotes
- The 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.
- Adu-Agyei and Zurich Insurance Company (FSCO A97-001546, June 16, 2000).
- Bernicky and Guardian Insurance Company of Canada (OIC A-006268, July 6, 1994)
- Gray and Zurich Insurance Company (FSCO P98-00047, June 11, 1999)
- Brown and Allstate Insurance Company of Canada (OIC A97-000579, May 29, 1997); Gomez and Pilot Insurance Company (OIC A-013080, May 10, 1995)
- [1996] S.C.R. 458: Briefly, it is sufficient if the contribution by the accident was more than minimal and thereby made a material contribution to the development of the condition.