Deborah Todd v. State Farm Mutual Automobile Insurance Company, 2004 ONFSCDRS 31

Neutral Citation: 2004 ONFSCDRS 31

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BETWEEN:

DEBORAH TODD

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON ENTITLEMENT TO EXPENSES

Before:

Catherine Skinner

Heard:

By telephone conference call on March 5, 2004.

Appearances:

Henry Goldentuler for Ms. Todd Robert S. Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Deborah Todd, was injured in a motor vehicle accident on July 8, 1999. In a decision dated November 25, 2003, I dealt with her claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of expenses:

Ms. Todd is not entitled to non earner benefits under section 12 of the Schedule.
Ms. Todd is not entitled to medical benefits under section 14 of the Schedule for assistive devices described in Total Body Recovery's November 8, 1999 occupational therapy report.
Ms. Todd is entitled to payments of $977.00 and $870.00 for the cost of assessments and reports under section 24 of the Schedule, plus interest on these amounts.
Ms. Todd is not entitled to a special award under subsection 282(10) of the Insurance Act.

The issue in this further hearing is:

Is Ms. Todd entitled to her expenses incurred in respect of this arbitration hearing?

Result:

Ms. Todd is entitled to 25% of her expenses incurred in respect of this arbitration hearing.

ANALYSIS:

State Farm is not seeking its expenses in respect of this arbitration. The parties agreed that, in determining Ms. Todd's entitlement to expenses, I should consider the criteria set out in section 12(2) of the Expense Regulation.² Although this section was amended in October 2003, the parties agreed that I should consider the criteria as they were prior to the amendment, because the hearing was completed in June 2003, before the amendments came into effect.

The parties' submissions centred around three of the enumerated criteria: each party's degree of success in the outcome of the proceeding; 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; and, the degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.

Ms. Todd submits that she is entitled to her arbitration expenses because she was successful on one of the three issues in dispute, that being her entitlement to the cost of reports and assessments under section 24 of the Schedule. She also submits that the issues in dispute were significant and complex and required that technical medical evidence be adduced for the purpose of establishing causation.

State Farm submits that Ms. Todd should not be awarded her expenses because of her very limited success in the arbitration proceeding. It submits that the issues in dispute were straightforward, but were rendered more complicated by Ms. Todd's expert witness, whose testimony ultimately did not assist her case and added significant time to the proceedings.

I find that Ms. Todd is entitled to 25% of her arbitration expenses. Ms. Todd was successful on only one issue in arbitration, and there was very little hearing time spent on that issue. The bulk of the hearing related to Ms. Todd's entitlement to non-earner benefits, and, to a much lesser degree, her entitlement to assistive devices. I do not agree with State Farm that Ms. Todd should be denied her expenses in their entirety. The issues in arbitration were not straightforward and I find that Ms. Todd argued her claim for non-earner benefits and assistive devices in good faith.

Although there were significant discrepancies between the testimony offered by many of Ms. Todd's witnesses and the documentary evidence in this case, Ms. Todd did attempt to explain these discrepancies. Although I did not accept her explanations in most instances, I do not find this a reason to deny her expenses outright.

In recognition of her partial success in arbitration, and all the other criteria in section 12 of the Expense Regulation, I award Ms. Todd 25% of her arbitration expenses.

If the parties are unable to agree on the amount of expenses, they may apply for an assessment under Rule 79.2 of the Dispute Resolution Practice Code within 30 days of the date of this decision.

March 9, 2004

Catherine Skinner Arbitrator

Date