Neutral Citation: 2004 ONFSCDRS 37
FSCO A02-000461
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
FASIHUDDEN SYED
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON EXPENSES
Before:
Susan Sapin
Heard:
By telephone conference call on October 24, 2003.
Allstate submitted a Brief of Authorities on October 23, 2003.
Appearances:
Harvey Dennis for Mr. Syed
Frank Benedetto for Allstate Insurance Company of Canada
Issues:
The Applicant, Fasihudden Syed, was injured in a motor vehicle accident on January 18, 2001. At the preliminary issue hearing on February 5, 2003, I dealt with his claims under the Schedule1for expenses for treatment provided by the Centre City Health Recovery Clinic. Mr. Syed did not appear at that hearing. Mark DeWitt, his duly authorised legal representative at that time, advised that he had been unable to contact his client.
In a decision dated February 14, 2003, I ordered that Mr. Syed was precluded from proceeding to arbitration because he had no reasonable explanation for providing late notice of his intention to apply for statutory accident benefits, contrary to subsections 31(1) and 32(2) of the Schedule. I reserved on the issue of expenses because, although Allstate was prepared to address that issue, Mr. Syed's legal representative was not. Consequently, it was necessary to schedule a further hearing so that the matter of expenses could be dealt with.
The issue in this further hearing is:
Is either party entitled to its expenses incurred in respect of this arbitration hearing?
Result:
Allstate is entitled to its reasonable expenses of the arbitration hearing, including expenses incurred to prepare for the expenses hearing, of $1,473.90.
Reasons:
Allstate claims arbitration expenses of $1,473.90. This includes lawyer's fees at the Legal Aid rate of $70.35 for 14.6 hours' work to prepare and present its case at arbitration, disbursements and GST. These expenses are well within the rules governing expenses at this Commission, and are very reasonable.
The criteria used to determine which party should be entitled to its expenses of an arbitration proceeding, and the specific expenses allowed, are set out in Rules 75, 78 and 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001), and the Expense Regulation found in Section F of the Code.2
These criteria are:
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....
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.
The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.
Any written offers to settle. . .(There were none in this case.)
Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.
Mr. Syed, who did not appear at the preliminary issue hearing or the expenses hearing, was unsuccessful in the arbitration of the preliminary issue, and is precluded from proceeding to arbitration on the substantive merits of his claim for medical treatment as a result. Furthermore, his conduct from the outset served to frustrate and delay the Insurer's efforts to deal effectively and fairly with his claim. In my February 14, 2003 decision, I found that Mr. Syed did not submit an Application for Accident Benefits to Allstate until nine months after his motor vehicle accident, depriving the Insurer of its right under the Schedule to independently assess his medical requirements during the period Mr. Syed underwent treatment. Despite the fact that Allstate advised him in writing of the statutory requirement that he provide a reasonable explanation for the delay, Mr. Syed did not provide any explanation until January 28, 2002. I found his explanation not to be reasonable. In addition, Allstate was unable to challenge significant inconsistencies in the evidence provided on Mr. Syed's behalf at the hearing, because Mr. Syed did not attend.
The conduct of the Applicant’s case suggests a disregard for the dispute resolution process as well as the expense and inconvenience to which both the Commission and the Insurer have been put as a result. This is an abuse of process.
After hearing Mr. Benedetto’s detailed submissions at the expenses hearing, Mr. Dennis had the good grace to acknowledge that an award of expenses in the amount claimed by Allstate was not unreasonable in the circumstances, and did not oppose such an award.
For all of these reasons, I find that Allstate is entitled to its expenses of the arbitration proceeding, fixed at $1,473.90.
March 18, 2004
Susan Sapin
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 37
FSCO A02-000461
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
FASIHUDDEN SYED
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Syed shall pay to Allstate Insurance Company of Canada its arbitration expenses of $1,473.90 pursuant to section 282 of the Insurance Act.
March 18, 2004
Susan Sapin
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.
- Section F - Expense Regulation consists of an excerpt from Regulation 664, R.R.O. 1990, as amended by O. Reg. 464/96 made under the Insurance Act, Subsection 12 (Criteria for Awarding Expenses), and the Schedule to Regulation 664, R.R.O. 1990, as amended by O. Reg. 464/96 (Dispute Resolution Expenses).