Neutral Citation: 2002 ONFSCDRS 171
FSCO A00-000447
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ROSE BURT
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
William J. Renahan
Heard:
By telephone conference call on October 17, 2002.
Appearances:
Richard Lebkowski for Mrs. Burt
Joan Takahashi for Dominion of Canada General Insurance Company
Issues:
The Applicant, Rose Burt, was injured in a motor vehicle accident on September 20, 1997. One of the issues in her claim against her Insurer, Dominion of Canada General Insurance Company ("Dominion"), concerns the amount of any weekly income replacement benefit she is entitled to.
Dominion brought this application for an order that Mrs. Burt produce certain documents. During the course of the hearing of the application, the parties agreed on what documents Mrs. Burt would produce. Each party sought expenses.
Issue:
The issue in this application is:
- Is either party entitled to expenses incurred in respect of this application, and if so, in what amount?
Result:
- Mrs. Burt is entitled to expenses of this application assessed at $250.
The criteria for determining entitlement to expenses of an arbitration proceeding are set out in subsection 12(2) of Ontario Regulation 664, R.R.O. 1990 as amended by Ontario Regulation 464/96 ["Expense Regulation"].
Background:
Mrs. Burt's counsel claims that Mrs. Burt was self-employed under contract with two companies, Performance Plus Electronics Inc. ("Performance Plus") and Burt Transportation Services Limited ("Burt Transportation"), and that she had no interest in either company. Her husband owns Performance Plus and her mother-in-law owns Burt Transportation. The parties cannot agree on the amount of any income replacement benefit.
By letter dated April 18, 2002, Mrs. Burt's counsel authorized Dominion to make arrangements with Mrs. Burt's accountants to inspect certain financial records. He wrote:
I trust that the accounting experts retained by the defendants will be given full access to all financial documents relating to the employment of Rose Burt as well as her income while working for Burt Transportation and Performance Plus.
On May 2, 2002, counsel for Dominion replied in part:
Mr. Edwards will be in contact with Mr. Goodman and hopes to attend at his office next week to conduct a preliminary review of the financial records of Burt Transportation, Performance Plus and Mr. and Mrs. Burt, as we understand that has been offered by your letter of April 18, 2002.
This does not clearly reflect what Mrs. Burt agreed to because it is not limited to financial documents relating to the employment of Mrs. Burt.
Dominion's accountants investigated financial records of Performance Plus. On June 11, 2002, it reported that it could not determine the amount of any income replacement benefit because records of wages paid before the accident did not exist. The accountants noted that they did not have access to the business records of Burt Transportation and that they required "unrestricted access to Burt Transportation's business records."
Dominion continued to ask for access to all the financial records of Burt Transportation. Mrs. Burt refused.
In this motion, Dominion sought an order for production of the financial records of Performance Plus and Burt Transportation, and in particular, those documents requested by Price Waterhouse Coopers, namely, accounting, payroll, banking,-sales and customer records. A fire drill interrupted the argument. During the break, counsel for Dominion telephoned Price Waterhouse who advised her that it wanted production of approximately eight types of documents relevant to services provided by Mrs. Burt or any replacement worker. Counsel for Mrs. Burt agreed to each specific request.
CONCLUSION:
On April 18, 2002, Mrs. Burt agreed to produce those financial documents of Performance Plus and Burt Transportation that were relevant to her income. She maintained this position up to this hearing. Most of Dominion's argument dealt with the inadequacy of the records produced by Mrs. Burt. In my view, Mrs. Burt's offer to produce financial documents relevant to her income was reasonable. Dominion did not establish that it was entitled to more than what Mrs. Burt has offered since April 18, 2002.
This proceeding was unnecessary and could have been avoided if Dominion had followed up with Mrs. Burt's offer to produce the Burt Transportation records relevant to her income.
Having regard to the criteria set out in the Expense Regulation, I order Dominion to pay Mrs. Burt her expenses of this application.
The amount of expenses I am authorized to award does not fully indemnify Mrs. Burt for her actual expenses. The maximum allowable hourly rate I may award is that established under the Legal Aid Services Act for professional services in civil matters before the Ontario Superior Court of Justice. It starts at $67 per hour. Under the Dispute Resolution Practice Code (Fourth Edition), the arbitrator may award an hourly rate up to $150. Neither counsel offered an estimate of expenses. The hearing of the application took approximately two hours. Including preparation time, I assess expenses of the application at $250.
October 30, 2002
William J. Renahan
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 171
FSCO A00-000447
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ROSE BURT
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:
- Dominion of Canada General Insurance Company shall pay Rose Burt $250.
October 30, 2002
William J. Renahan
Arbitrator
Date