Brent Ford v. Wawanesa Mutual Insurance Company, 2000 ONFSCDRS 191

Neutral Citation: 2000 ONFSCDRS 191

FSCO A98-001436

BETWEEN:

BRENT FORD

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Asfaw Seife

Heard: By telephone conference call on August 17, 2000.

Appearances:

Alex W. Demeo for Mr. Ford

Greg Birston for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Brent Ford, was injured in a motor vehicle accident on August 4, 1995. In a decision dated December 10, 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.

Wawanesa shall recalculate Mr. Ford's income replacement benefits on the basis of a gross annual income of $42,303.53.
Mr. Ford's pre-accident earning capacity is his net weekly income from employment used to determine his income replacement benefits immediately before the payment of the weekly loss of earning capacity benefits began on January 19, 1998, indexed in accordance with paragraph 79(1)1 of the Schedule.
Mr. Ford's residual earning capacity is zero. Wawanesa shall pay Mr. Ford's weekly loss of earning capacity benefits, from January 19, 1998 onwards, calculated in accordance with the provisions of subsection 28(1) of the Schedule and my finding about Mr. Ford's pre-accident earning capacity, set out in the preceding paragraph.
Wawanesa shall pay Mr. Ford interest on all overdue amounts, in accordance with section 68 of the Schedule.
Mr. Ford is not entitled to a special award.
The issue of expenses is deferred.

The issue in this further hearing is:

Is Mr. Ford entitled to his expenses incurred in respect of this arbitration hearing?

Result:

Mr. Ford is entitled to his reasonable expenses incurred in respect of this arbitration.

EVIDENCE AND ANALYSIS:

Under subsection 282(11) of the Insurance Act, as amended in November 1996, I have the discretion to award to an insurer or an insured person, the arbitration expenses prescribed in Ontario Regulation 664, as amended, ( the "Regulation") not exceeding the maximum amounts set out in the Regulation. In exercising my discretion to award or deny a party's expenses, I am required to consider the criteria set out in the Regulation. Subsection 12(2) of the Regulation states:

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:

1 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.

Mr. Ford seeks an award of his arbitration expenses. Wawanesa did not claim its expenses; however, it took the position that Mr. Ford is only entitled to half of his expenses as he was partially successful in the outcome of the arbitration. Wawanesa pointed to my finding that the amount of Mr. Ford's gross annual income used to calculate his income replacement benefits was less than the amount he claimed, and the fact that his claim for a special award was dismissed.

It has been stated in a number of arbitration decisions that the degree of success is only one criterion in an open-ended list of criteria and that these criteria do not reflect a move to the kind of results-based approach used by the courts. Rather, success should be weighed against the other relevant considerations, and the concerns regarding the insured person's access to the dispute resolution system, which remains to be a vital consideration in awarding arbitration expenses.²

Mr. Ford has been largely successful in the outcome of the proceeding since most of the issues that Mr. Ford referred to arbitration, including the main issue of the amount of his loss of earning capacity benefit, were decided in his favour. Most of the hearing time was spent on the issue of loss of earning capacity benefits. Two of the three witnesses called by both sides testified about this issue only. The issues relating to the amount of gross annual income and the method of calculating the net weekly income to be used for determining Mr. Ford's pre-accident earning capacity were dealt with by way of documentary evidence and submissions.

This was a case where a number of novel and complex issue were raised. Mr. Ford presented his cases in a very concise and efficient manner, calling only one witness and relying on documentary evidence and legal argument. I found his conduct tended to shorten the proceedings. He took no position at the arbitration hearing that was unfounded, frivolous, vexatious, fraudulent or an abuse of process. While he was not successful in his claim for a special award, the amount of hearing time spent on this issue was not significant.

Having considered the criteria set out in the Regulation, I find that an award of expenses to Mr. Ford is justified in all of the circumstances of this arbitration. I therefore exercise my discretion to award Mr. Ford all of his expenses, reasonably incurred in the arbitration.

I urge the parties to resolve the question of the amount of the expenses on their own. If they are not successful, they may request an assessment of the expenses by the Commission.

October 20, 2000

Asfaw Seife Arbitrator

Date