Neutral Citation: 2002 ONFSCDRS 59

FSCO A99-000059

BETWEEN:

IMAD EL-SAIKALI Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Eban Bayefsky

Heard: Written submissions received by February 18, 2002 and a telephone conference call held on March 1, 2002. Order issued April 11, 2002.

Appearances: R. Mitchell Rowe for Mr. El-Saikali Ivan Luxenberg for Co-operators General Insurance Company

Issues:

The Applicant, Imad El-Saikali, was injured in a motor vehicle accident on April 3, 1996. In a decision dated November 21, 2001, 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. El-Saikali is not entitled to weekly income replacement benefits from May 18, 1997 to April 3, 1998.
The remuneration Mr. El-Saikali received from his employment at A&A Welding should not be included in the calculation of his income replacement benefits.
Mr. El-Saikali is not entitled to medical benefits for the cost of various prescriptions.
Mr. El-Saikali is not entitled to benefits for any airfare incurred by his parents in travelling from Lebanon to Canada.
Mr. El-Saikali is not entitled to a special award or interest.

The issue in this further hearing is:

Is Mr. El-Saikali entitled to his expenses incurred in respect of this arbitration hearing?
Is Co-operators entitled to its expenses incurred in respect of this arbitration hearing?

Result:

Mr. El-Saikali is entitled to one-third of his arbitration expenses.
Co-operators is not entitled to its expenses of the arbitration.

EVIDENCE AND ANALYSIS:

Pursuant to Rule 75 of the Dispute Resolution Practice Code, an arbitrator may award expenses to a party if satisfied that the award is justified having regard to the following criteria:

(a) each party's degree of success in the outcome of the proceeding;

(b) 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;

(c) 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;

(d) the degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding;

(e) at the request of either party, any written offer to settle made in accordance with Rules 76 and 77, having regard to the outcome of the proceeding;

(f) any other matter related to the proceeding that the adjudicator considers relevant to the issue of whether any award of expenses is justified.

Mr. Rowe submitted, and I agree, that an important principle underlying the awarding of expenses is facilitating access to the dispute resolution system. However, I agree with Mr. Luxenberg that this must be tempered with a consideration of the specific findings in an arbitration decision, particularly regarding an applicant's credibility. As Rule 75 suggests, an arbitrator has a broad discretion to consider all relevant factors in the awarding of expenses. I further find that the issue of expenses is not an all-or-nothing proposition. Where circumstances warrant, I find that I have the authority to award less than a party's full expenses. While the Insurer initially sought its expenses of the proceeding, Mr. Luxenberg appeared to abandon this claim during his oral submissions, acknowledging that there was likely no basis upon which Mr. El-Saikali could be ordered to pay the Insurer's expenses.

In the present case, I rejected all of Mr. El-Saikali's claims. I found that Mr. El-Saikali's lack of credibility pervaded and undermined every aspect of his case. I found an established pattern in which Mr. El-Saikali embellished his problems in order to further his claim for accident benefits. I find that these factors significantly mitigate against Mr. El-Saikali receiving his expenses of the arbitration.

However, I also found that Mr. El-Saikali's life had changed significantly after the accident, including his taking a wide variety of medications. I found that the case was somewhat complex and that it raised substantial factual issues. Despite my findings on credibility, I find that, in one sense, Mr. El-Saikali likely believed he was raising legitimate issues for determination. I find that these factors provide some support for Mr. El-Saikali's claim for expenses, bearing in mind the need to facilitate access to the dispute resolution process.

Both parties worked well together to complete the hearing in a timely manner. Mr. El-Saikali was generally co-operative in responding to the Insurer's investigations. Neither party raised the matter of settlement discussions in relation to their claim for expenses.

On the basis of the above, I agree with Mr. Luxenberg that there is no basis on which to order Mr. El-Saikali to pay the Insurer's expenses. However, I do not find that Mr. El-Saikali is entitled to all of his expenses of the arbitration. In balancing the various factors discussed above, I find it appropriate to award Mr. El-Saikali one-third of his expenses.

May 7, 2002

Eban Bayefsky Arbitrator

Date

ARBITRATION ORDER