Financial Services Commission of Ontario
Neutral Citation: 2003 ONFSCDRS 19
FSCO A02-000297
BETWEEN:
TUYET VU
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
PRE-HEARING DECISION
Before:
Judith Killoran
Heard:
January 29, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Written submissions were received on February 4 and 10, 2003.
Appearances:
Patrick Brown for Ms. Vu
Philippa Samworth for Co-operators General Insurance Company
Issues:
The Applicant, Tuyet Vu, was injured in a motor vehicle accident on September 10, 2000. She applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.1 Co-operators terminated weekly income replacement benefits as of February 20, 2001. The parties were unable to resolve their disputes through mediation, and Ms. Vu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act").
At the pre-hearing discussion of this case held on July 2, 2002, the issues in dispute were identified and agreed to as follows:
Is Ms. Vu entitled to receive a weekly income replacement benefit of $154.80 from February 20, 2001 and ongoing, pursuant to section 4 of the Schedule?
Is Co-operators liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?
Is Co-operators liable to pay Ms. Vu's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Ms. Vu liable to pay Co-operators' expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Ms. Vu entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Background
Counsel for Co-operators wrote to the Commission explaining that Co-operators had two files with applicants who had the same counsel and were involved in the same accident. Ms. Vu is one of the applicants. A pre-hearing discussion was conducted with Ms. Vu on July 2, 2002 and an arbitration was scheduled for April 7, 8 and 9, 2003. The first pre-hearing discussion in the second file was set for January 29, 2003. Counsel for all parties agreed to use the pre-hearing discussion on January 29, 2003 to have settlement discussions on both files. Therefore, a resumption of the pre-hearing discussion with Ms. Vu was scheduled for January 29, 2003. Accordingly, Notice of Resumption of Pre-hearing Discussion was sent by the Financial Services Commission to Ms. Vu and her counsel on December 10, 2002.
Issue:
- Is Co-operators entitled to expenses related to the resumption of the pre-hearing?
Result:
- Ms. Vu shall pay to Co-operators $300 in expenses forthwith.
EVIDENCE AND ANALYSIS:
Ms. Vu's counsel met with her on January 23, 2003 at his office. He decided that it would not be appropriate to deal with Ms. Vu's issues at the resumption of pre-hearing scheduled for January 29, 2003. He advised Ms. Vu that her attendance at the resumption of pre-hearing was not necessary. However, he did not inform either the Commission or the Insurer's counsel of his decision. As a result, Insurer's counsel spent a considerable amount of time preparing for the resumption of pre-hearing. On January 29, 2003, neither Ms. Vu nor her counsel attended the resumption of pre-hearing.
Subsection 12(2) of Ontario Regulation 664, as amended by Ontario Regulation 464/96, sets out the criteria to be considered in determining an award of expenses. One of the criteria is conduct on the part of either party "that tended to prolong, obstruct or hinder the proceeding," which characterizes the conduct described above. For that reason, I find that Co-operators is entitled to costs thrown away.
EXPENSES:
At the resumption of pre-hearing discussion, Insurer's counsel asked that $1,000 in expenses should be paid by Ms. Vu. While I agree that Co-operators should be compensated for costs thrown away, I am hopeful that much of the preparation time will be useful in the future. I am also reluctant to penalize Ms. Vu too harshly for the conduct of her counsel. Therefore, I order Ms. Vu to pay $300 to Co-operators forthwith for expenses related to the resumption of pre-hearing.
February 17, 2003
Judith Killoran
Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 19
FSCO A02-000297
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
TUYET VU
Applicant
and
CO-OPERATORS 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:
- Ms. Vu shall pay to Co-operators $300 forthwith for expenses related to the resumption of pre-hearing.
February 17, 2003
Judith Killoran
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.