Ashmeed Ali Bocas v. Wawanesa Mutual Insurance Company, 2003 ONFSCDRS 47

Neutral Citation: 2003 ONFSCDRS 47

FSCO A01–000839

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ASHMEED ALI BOCAS

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before:

Catherine Skinner

Heard:

Written submissions received by February 26, 2003 and a hearing on February 28, 2003, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Sulaiman A. Mangal for Mr. Ali Bocas

Ian D. Kirby for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ashmeed Ali Bocas, was injured in a motor vehicle accident on March 29, 2000. In a decision dated December 3, 2002, 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:

1. Wawanesa shall pay income replacement benefits to Mr. Ali Bocas at a rate of $400 per week from July 22, 2000 to October 4, 2000 under Part II of the Schedule.

2. Wawanesa shall pay $1,522 to Mr. Ali Bocas for chiropractic treatments under section 14 of the Schedule.

3. Wawanesa shall pay interest on the overdue income replacement benefits and medical benefits pursuant to subsection 46(2) of the Schedule.

The issues in this further hearing are:

1. Is Mr. Ali Bocas entitled to his expenses incurred in respect of this arbitration proceeding?

2. Is Wawanesa entitled to its expenses incurred in respect of this arbitration proceeding?

Result:

1. Mr. Ali Bocas is entitled to 50% of his expenses incurred in respect of this arbitration proceeding. The total amount ordered in expenses is $6,505, including GST.

2. Wawanesa is not entitled to its expenses incurred in respect of this arbitration proceeding.

EVIDENCE AND ANALYSIS:

Background

Both Mr. Ali Bocas and Wawanesa claim entitlement to their arbitration expenses in this case.

Mr. Ali Bocas achieved partial success in the arbitration proceeding. He claimed entitlement to income replacement benefits from July 22, 2000 to the date of hearing in July 2002. I ordered income replacement benefits from July 22, 2000 to October 4, 2000. I ordered payment of Mr. Ali Bocas' chiropractic expenses of $1,522 but denied his claim for physiotherapy expenses of $2,440.

Entitlement to expenses is determined in accordance with the criteria set out at section 12(2) of the Expense Regulation.² These criteria are as follows:

1. Each party's degree of success in the outcome of the proceeding.

2. 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.

3. 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.

4. The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.

5. 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.

6. Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

In addition to these enumerated criteria, arbitrators have frequently referred to the principle set out in McCormick and Economical Mutual Insurance Company³ as follows:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Entitlement to Expenses

Submissions:

Mr. Ali Bocas submits that he is entitled to his arbitration expenses because he was successful in two out of three issues in arbitration, those being income replacement benefits and chiropractic expenses. He also submits that Wawanesa had engaged in conduct which had the effect of prolonging or delaying the proceeding. He specifically referred to Wawanesa's request to adjourn the first pre-hearing discussion in this case, originally scheduled for October 29, 2001, and its failure to attend at the second pre-hearing discussion of December 14, 2