Becky L. Fan v. State Farm Mutual Automobile Insurance Company, 2003 ONFSCDRS 88

Neutral Citation: 2003 ONFSCDRS 88

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FINANCIAL SERVICES COMMISSION OF ONTARIO

Before:

Tanja Wacyk

Heard:

Written submissions received by May 15, 2003.

Appearances:

Harvey S. Consky for Ms. Fan

Trish McAvoy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Becky L. Fan, was injured in a motor vehicle accident on December 30, 1999. In a decision dated September 13, 2002, I found that pursuant to subsection 30(2)(a) of the Schedule,¹ State Farm is relieved of any obligation to pay Ms. Fan benefits under section 22 of the Schedule by reason of a material representation she made, and which induced State Farm to enter into the contract of automobile insurance

I reserved on the issue of expenses, and the issue in this further hearing is:

1. Is either Ms. Fan or State Farm entitled to their expenses, incurred in respect of this arbitration hearing?

Result:

1. Ms. Fan shall pay to State Farm forthwith, the amount of $8,095.38, as the total of assessed expenses in this matter.

SUBMISSIONS AND ANALYSIS:

Both parties filed their bill of costs in this matter with the Commission, together with their submissions in support of an award in their favour.

Ms. Fan essentially argued that although she had not been successful in the arbitration, she should not be subject to costs only because she lost. Rather, she maintained that she was entitled to her expenses because there was a genuine factual issue in dispute between the parties, the resolution of which she facilitated by consenting to a preliminary issues hearing.

As a general principle, an applicant's failure to succeed in a given case is not determinate of the issue of expenses. However, in this instance, Ms. Fan makes a less than compelling case for a cost award in her favour as the "factual issue" was not one that was open to interpretation. Rather, Ms. Fan would have been aware that she had not disclosed her entire accident history to State Farm and yet pressed on with assertions to the contrary.

Ms. Fan also maintained that she and her counsel were at all times co-operative with the tribunal and accommodating to State Farm and its counsel, and did not engage in conduct which was clearly unreasonable, frivolous or vexatious. In particular, Ms. Fan pointed out that she and her counsel attended at the residence of a witness for State Farm who was too ill to attend, in order to enable her to testify.

While this may be true, there are also numerous times when Ms. Fan's conduct and lack of responsiveness to questions unnecessarily prolonged the hearing.

For example, Ms. Fan maintained that she and her counsel permitted the Insurer's counsel to conduct a lengthy cross-examination of Ms. Fan's sworn statement without objecting. She submitted that this allowed State Farm's counsel to cross-examine on almost every question and answer in the written statement rather than restrict her cross-examination to questions and clarification on the portions which were contentious.

However, in my view, the lengthy cross-examination was necessary because of Ms. Fan's vague and often contradictory answers. I noted at pages 19 and 20 of my decision on the merits that I found Ms. Fan's evidence problematic. I cited an example in which she had given three contradictory answers to the same question. Such obfuscation confused the evidence and unnecessarily lengthened the hearing.

Furthermore, on the second day of the hearing, counsel for Ms. Fan sought and received leave to call Ms. Fan's son, Charles Lee. This required that an additional day be set for the hearing as State Farm was required to call an additional witness to answer Mr. Lee's testimony. In granting leave, I noted that cost consequences could follow. Having heard Mr. Lee's evidence, I found at page 20 of my decision on the merits that Mr. Lee had little personal recall of the meeting regarding which he testified and his focussed recall suggested he was coached on the primary issues in dispute. Consequently, his evidence was of little assistance and resulted in unnecessarily prolonging the hearing.

Considering the above in conjunction with Ms. Fan's lack of success in this matter, I am persuaded that State Farm is entitled to its expenses in this matter.

That having been said, Ms. Fan does not bear the entire responsibility regarding the length of time required to conclude this matter. There were several delays resulting from occasions where an interpreter either was not initially provided as requested by Ms. Fan, or had to leave before the full day had been utilized because of a miscommunication for which Ms. Fan bore no responsibility. I have considered this when considering the quantum of costs payable by her.