Thomas Manzanares v. Pembridge Insurance Company (Pafco Ins. Co.), 2004 ONFSCDRS 48

Neutral Citation: 2004 ONFSCDRS 48

FSCO A02-000401

FINANCIAL SERVICES COMMISSION OF ONTARIO

Before: Fred Sampliner

Heard: Written submissions received by March 1, 2004 and a telephone conference call on December 19, 2003.

Appearances:

Ben Fortino for Mr. Manzanares

Rinaldo DiVincenzo for Pembridge Insurance Company (Pafco Ins. Co.)

Issues:

The Applicant, Thomas Manzanares, was injured in a motor vehicle accident on December 18, 1999. In a decision dated May 27, 2003, I denied Mr. Manzanares' claim for income replacement benefits under the Schedule¹ because he fell within an exclusion from that benefit. The further issue in this hearing is whether Pembridge is entitled to an award of its arbitration expenses from Mr. Manzanares.

Result:

1. Pembridge is not entitled to an award of its arbitration expenses from Mr. Manzanares

EVIDENCE AND ANALYSIS:

A party may be entitled to reimbursement for its arbitration expenses², taking into consideration: the party's degree of success; the novelty, complexity and significance of the issues; any settlement offers; whether either parties' conduct in any aspect of the proceeding was improper, vexatious or unnecessary; and any other relevant consideration.³ There are no settlement offers and Pembridge does not contend that Mr. Manzanares' claims were vexatious or improper.

Pembridge alleges that Mr. Manzanares' late production of documents led to a one year delay in hearing this matter, that calling witnesses to support his claim for a special award was unnecessary, and that he did not agree to streamline the proceedings. Pembridge claims $10,270 for approximately 124 hours of lawyer and student time in the arbitration process, plus $613 in disbursements.

The following information is relevant to Pembridge's claim of delay. Six months after Mr. Manzanares filed for arbitration the parties met at a September 2002 pre-hearing, and set the hearing dates for March 2003. Although, the parties argued during the interim about the number of witnesses and whether the evidence could be completed in the allotted time, nothing in their correspondence indicates that either party was particularly uncooperative.

Procedural disputes aside, the hearing of the preliminary issue took place in March 2003, which is in accord with the Commission's general guideline to provide hearings within six months of the pre-hearing. The time line of the pre-hearing and hearing does not support Pembridge's contention that Mr. Manzanares delayed the arbitration process

Pembridge discovered and raised the defence that Mr. Manzanares was excluded from receiving income replacement benefits a month before the arbitration hearing, and the parties' correspondence with the Commission indicates they quickly made arrangements to convert the main hearing to a preliminary issue hearing within a month of the original dates. Considering that Mr. Manzanares co-operated with this last minute change to the nature of the proceedings, there is no factual basis for Pembridge's claim he either intentionally obstructed or was neglectful in the arbitration process.

The March 2003 preliminary issue hearing was conducted within the one day time that the parties allocated in consultation with the pre-hearing arbitrator. The parties submitted an agreed statement of facts that helped economize time, and I found that their marshalling of the documentary evidence and witnesses during the hearing was conducted in a very efficient manner. These facts contradict Pembridge's assertion, and I find that Mr. Manzanares did not obstruct or engage in any behaviour that delayed or interfered with the conduct of the hearing.

The only viva voce evidence at the hearing was Mr. Manzanares' cross-examination of the in-house adjuster and independent adjuster. Pembridge claims this testimony was not necessary to support his claim for a special award.

Although Mr. Manzanares claimed a special award on the basis that Pembridge unreasonably delayed or withheld his income replacement benefits⁴, he did not call the adjusters for that issue. He requested their attendance to determine whether Pembridge had intentionally waived the exclusion. This testimony was the main evidence used on waiver issue. I therefore find that Mr. Manzanares' request for attendance of the adjusters was relevant.