Mary K. Shadd v. Liberty Mutual Insurance Company, 2002 ONFSCDRS 84

Financial Services Commission of Ontario

Neutral Citation: 2002 ONFSCDRS 84

FSCO A99-001201

BETWEEN:

MARY K. SHADD Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION CORRECTION

Before: Fred Sampliner

Heard: By telephone conference call on May 17, 2002.

Appearances: James E. S. Allin for Mrs. Shadd Jim Tomlinson for Liberty Mutual Insurance Company

Issues:

Liberty Mutual Insurance Company ("Liberty") requests a correction to my November 28, 2001 order that it to pay Mrs. Mary K. Shadd a Loss of Earning Capacity Benefit ("LEC") under the Schedule¹ of $353.32 per week during her entitlement in 1998, $355.79 per week during 1999, $365.04 per week in 2000, and $374.90 per week during 2001. The parties consent to include the issue of entitlement to expenses in this decision. This arbitration was conducted at the Financial Services Commission of Ontario pursuant to the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Do I have jurisdiction to correct my November 28, 2001 arbitration order?

2. If so, what is the correct calculation of Mrs. Shadd's LEC benefits?

3. Is either Mrs. Shadd or Liberty Mutual entitled to their respective expenses of the arbitration proceeding?

Result:

1. I have jurisdiction to correct the November 28, 2001 arbitration order.

2. The correct revised amount of Mrs. Shadd's LEC benefit for her 1998 entitlement period is $253.63 per week, $255.41 per week in 1999, $262.05 per week during 2000, and $269.12 per week for 2001.

3. Mrs. Shadd is entitled to her expenses of the arbitration proceeding.

CORRECTION OF AN ERROR:

Mrs. Shadd argues that there is no jurisdiction for me to make Liberty's requested changes to the November 28, 2001 order because I am functus, my arbitral job duties are complete. The appeal of the November 28, 2001 decision is set for hearing on May 30, 2002 before the Commission.

The Statutory Powers and Procedure Act ("SPPA")² and Rule 65 of the Dispute Resolution Practice Code ("the Code")³ grant authority for a tribunal to correct an error in calculation at any time. The parties agree that in calculating Mrs. Shadd's LEC benefits I inadvertently did not make the required deductions to her pre-accident income for the Unemployment Insurance premiums, Canada Pension Plan contributions, federal and provincial income tax she would pay on her gross earnings.⁴ I find that I made a technical error in the calculation of Mrs. Shadd's LEC benefits, and that I have jurisdiction under the SPPA and the Code to make the requested corrections.

Mrs. Shadd's counsel does not dispute the accuracy of the $3,518.50 total amount for the above itemized deductions from Mrs. Shadd's pre-accident earnings, as set out in Liberty Mutual's February 27, 2002 accounting report. Mrs. Shadd made no argument and did not present any evidence to contradict Liberty's calculation of her LEC benefits.

Based on Liberty's calculations, I find that Mrs. Shadd's revised LEC benefits are: $253.63 per week from May 1, 1998 through December 31, 1998; $255.41 per week from January 1, 1999 through December 31, 1999; $262.05 per week from January 1, 2000 through December 31, 2000; $269.12 per week from January 1, 2001 through December 31, 2001.

EXPENSES:

Both parties claim that they are entitled to payment of their expenses of the arbitration proceeding from the other party. Neither party made an offer to settle.⁵

Mrs. Shadd succeeded in establishing her entitlement to an LEC benefit, but she did not prove the entire quantum of her claim. On the basis that Mrs. Shadd was only partially successful, Liberty argues that she should not recover all her expenses.⁶

However, Liberty never presented Mrs. Shadd with any alternative to pursuing her LEC claim through an offer to settle. She was largely successful in this arbitration, and pursuant to the criteria set out in Rule 73 and Schedule F of the Code, I find that as a result Mrs. Shadd is entitled to her expenses of this process.

Mrs. Shadd's had not sent Liberty her counsel's time dockets or an itemized list of her expenses of the arbitration at the time of this hearing, but agreed to immediately prepare the documents. Liberty will respond by May 27, 2002 and we agreed to resume this hearing by teleconference at 4:00 p.m. on June 6, 2002 for the purpose of assessing Mrs. Shadd's expenses.

May 28, 2002

Fred Sampliner Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 84

FSCO A99-001201

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARY K. SHADD Applicant

and

LIBERTY MUTUAL 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:

1. The November 28, 2001 order is amended to state: Liberty shall pay Mrs. Shadd an LEC benefit under Part VI of the Schedule of $253.63 per week from May 1, 1998 through December 31, 1998, $255.41 per week from January 1, 1999 through December 31, 1999, $262.05 per week from January 1, 2000 through December 31, 2000, $269.12 per week from January 1, 2001 through December 31, 2001.

2. Mrs. Shadd is entitled to her expenses of the arbitration process.

May 28, 2002

Fred Sampliner Arbitrator

Date

Footnotes

1. 1The 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. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2Subsection 21.1, Statutory Powers and Procedure Act, R.S.O. 1990
3. 33rd ed. April 15, 1997
4. 4Sections 29 and 81 of the Schedule
5. 5Rule 74 of the Dispute Resolution Practice Code, 3rd ed. April 15, 1997
6. 6Rules 73, 76, 77 of the Dispute Resolution Practice Code, 3rd ed. April 15, 1997