Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 122
FSCO A02-000780
BETWEEN:
K
Applicant
and
LIBERTY INSURANCE COMPANY OF CANADA
Insurer
DECISION ON ENTITLEMENT TO EXPENSES
Before:
William J. Renahan
Heard:
Written submissions received from Liberty on July 21, 2005.
Appearances:
No submissions were received from Mr. K or his counsel, Albert Conforzi, within the time for making submissions
Dwain Burns for Liberty Insurance Company of Canada
Issues:
The Applicant, Mr. K, was injured in a motor vehicle accident on November 6, 2000. In decisions dated January 6, 2005 and May 27, 2005, 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:
Mr. K's application for income replacement benefits is dismissed.
Mr. K is not entitled to $2,059 for treatment at Pain Rehabilitation Clinic.
Mr. K is entitled to $875 for a functional capacity evaluation performed by Rosemount together with interest calculated according to section 46 of the Schedule.
Mr. K is not entitled to a special award.
Each party shall bear their own expenses of the application for variation/revocation.
The issue in this further hearing is:
- Is either party entitled to his expenses incurred in respect of the arbitration hearing?
Result:
- Each party shall bear their own expenses of the arbitration proceeding.
EVIDENCE AND ANALYSIS:
Mr. Burns asked for an appointment to settle the issue of expenses. I asked Mr. Burns to make written submissions on the issue of entitlement and advised the parties that Mr. Conforzi would have 10 days to file a response. I received submissions from Mr. Burns on July 21, 2005. Mr. Conforzi did not make submissions.2
The criteria for determining entitlement to expenses are set out in Ontario Regulation 664 as amended and I deal with each criteria in order.
1. Each party's degree of success in the outcome of the proceeding.
The main issue, in terms of monetary value and time involved at the hearing, was the issue of Mr. K's entitlement to income replacement benefits. Liberty successfully defended Mr. K's claim for these benefits. It also successfully defended several smaller claims for medical benefits and the cost of examinations as well as a claim for a special award. Mr. K was successful in recovering $875 for a functional capacity evaluation.
2. Any written offers to settle made in accordance with the rules.
Neither party made a written offer to settle in accordance with the rules.
3. Whether novels issues are raised in the proceeding.
Neither party raised a novel issue.
4. The conduct of a party or a party's representative that tended to prolong, obstruct of hinder the proceeding, including a failure to comply with undertakings and orders.
When a person is working at the time of the accident, a pre-existing medical condition is often not relevant to his claim that he is disabled as a result of the accident, because he is working despite the pre-existing condition. In many cases, it may be relevant to explain why the person is more vulnerable to a disabling injury, in which case, the claimant would rely on the pre-existing condition.
However, in this case, Mr. K suffered an episodic psychiatric illness which disabled him from time to time. Since the disability was episodic, the nature of the pre-existing condition was relevant to several questions. It was relevant to whether his disability after the accident was due to injuries suffered in the accident or his episodic psychiatric illness. It was relevant to whether any impairment suffered in the accident aggravated his pre-existing disability. It was relevant to explain test results and assessments he underwent after the accident. It was relevant to explain the manner in which Mr. K testified. It was relevant to an understanding of the effects of the medications Mr. K took at various times. Mr. K had no insight into his illness and could not help answer these questions.
Despite the relevance of this evidence, and despite the attendance of three psychiatrists at the hearing, neither party clearly addressed the nature of Mr. K's psychiatric illness, the medications he was on at different times and the effects of those medications. Most of what I learned about the nature of Mr. K's illness, I put together from reading hospital records covering a twelve year period.
Liberty claimed that the hearing was unnecessarily prolonged because of Mr. K's failure to produce his hospital records to its assessors and at this hearing on a timely basis.
Liberty relied on Mr. K's pre-existing medical condition and therefore it had the onus to establish that any post-accident disability was due to that condition. I find that the hearing was prolonged, largely, due to the failure of Liberty's representative to address Mr. K's illness in a clear and comprehensive manner.
Wafik Abadir was Liberty's counsel at the hearing. Despite several warnings from me, Mr. Abadir's examinations and cross-examinations were lengthy, and, to a large extent, not helpful. For example, although Mr. Abadir cross-examined Mr. K for more than a day, I found very little of that evidence helpful.
According to the documentary evidence, Mr. K's last hospitalization ended July 24, 2002. I heard evidence that Mr. K was hospitalized after that date and despite Mr. Conforzi's undertaking to Mr. Abadir to produce the documents concerning these hospitalizations, he did not produce them. It would have helped me if I had all the relevant documents.
Both parties made the hearing unnecessarily complex and long, but I find that this was mostly due to Mr. Abadir's conduct.
5. Whether any part of the proceeding was improper, vexatious or unnecessary.
This criteria was not applicable.
Conclusion:
Having regard to these criteria, I find that each party shall bear their own expenses of the arbitration proceeding.
August 30, 2005
William J. Renahan
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 122
FSCO A02-000780
BETWEEN:
K
Applicant
and
LIBERTY 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:
- Each party shall bear their own expenses of the arbitration proceeding.
August 30, 2005
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- On August 19, 2005, after I had written this decision, I received submissions from Mr. Conforzi under letter dated August 12, 2005. I read those submissions, and they do not change this decision.