Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 149 FSCO A04-001564
BETWEEN:
SARBJIT SINGH Applicant
and
AVIVA CANADA INC. Insurer
PRE-HEARING DECISION
Before: David Muir
Heard: June 3 and 22, 2005, by telephone conference call. Written submissions were received on June 21, July 12, 15 and 29, 2005
Appearances: Satwant Merwar for Mr. Singh Julie Parent for Aviva Canada Inc. Muthu Annamalai for Mr. Sidhu and Mr. Braithwaite
Issues:
The Applicant, Sarbjit Singh, was injured in a motor vehicle accident on April 14, 2003. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.1 The parties have been unable to resolve their disputes through mediation, and Mr. Singh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Aviva has brought a motion for expenses from Mr. Singh for time thrown away. Mr. Singh seeks an order that his prior representatives, Mr. Stephen Braithwaite and Mr. Gursharan Sidhu of Alliance Legal Services Inc., pay whatever expenses are found owing to Aviva pursuant to subsection 282(11.2) of the Insurance Act.
Mr. Sidhu and Mr. Braithwaite were put on Notice of this Motion and have responded by way of letter dated July 12, 2005 from Muthu Annamalai of Alliance Legal Services Inc.
Background:
The pre-hearing discussion of this case was held on January 17, 2005. At that time, Mr. Singh was represented by Mr. Gursharan Sidhu, agent, and Mr. Stephen Braithwaite, said to be legal counsel, apparently in association with Alliance Legal Services. A Stephen Braithwaite is listed on the Law Society of Upper Canada website. Although there is no firm name listed there, the phone number is the same number as is found on the Alliance Legal Services letterhead used to communicate with the Commission.
At the first pre-hearing, there was considerable discussion of the need for further productions of financial information alleged to be necessary to properly adjust Mr. Singh's claims to an income replacement benefit. Arbitration hearing dates were set for late June 2005. It was also agreed at that time that there would be a meeting of the accountants for both parties prior to an agreed resumption of the pre-hearing on April 1, 2005. Just prior to the April 1 date, counsel for Aviva wrote asking that the pre-hearing be rescheduled as the accountants had not yet met, although a meeting was said to be pending.
It was agreed that the pre-hearing would be rescheduled to June 3, 2005.
On June 2, 2005, Aviva delivered a Notice of Motion seeking an order dismissing the arbitration for failure to comply with undertakings to produce documents, or alternatively, an order adjourning the hearing scheduled to take place in late June 2005, on terms. The Notice of Motion was delivered to the Commission, Mr. Singh, Mr. Sidhu and Mr. Braithwaite.
On June 3, 2005, the resumed pre-hearing was convened by the writer. The following is taken from my pre-hearing report dated June 9, 2005:
A resumption of the pre-hearing discussion in this case was held on June 3, 2005, at 10:00 a.m., by telephone conference call arranged by the Financial Services Commission of Ontario. Ms. Parent, legal counsel, represented Aviva Canada Inc. ("Aviva").
The pre-hearing was resumed to hear a motion brought by Aviva to dismiss the arbitration for failure to comply with undertakings to produce documents, or, alternatively, an order adjourning the hearing scheduled in late June 2005, on terms.
At the time set for the pre-hearing I contacted Mr. Gursharan Sidhu, Mr. Singh's representative. He was not available, but an unidentified associate who answered Mr. Sidhu's phone advised that Mr. Sidhu no longer represented Mr. Singh. There is no record of a change of representative in the Commission file. I left a message for Mr. Sidhu asking that he contact me immediately.
I contacted Ms. Parent and advised her of the circumstances.
I telephoned Mr. Singh directly at his home and he confirmed that he had a new representative, Mr. Satwant S. Merwar. Mr. Merwar was eventually reached by telephone.
I directed that Mr. Merwar confirm in writing that he was representing Mr. Singh in this matter.
On June 15, 2005, the Commission received a letter dated June 13, 2005 which purported to advise that Alliance Legal Services no longer represented Mr. Singh. Neither Mr. Singh, Mr. Sidhu, or Mr. Braithwaite have complied with Rule 9 of the Dispute Resolution Practice Code, although, as indicated, Mr. Singh has advised that he has retained new counsel, Mr. Satwant Merwar, who has represented him since sometime prior to June 3, 2005.
The pre-hearing was set to resume on June 22, 2005. At that time the motions to dismiss the arbitration as well as the motion for expenses were to be considered, although I indicated to Aviva that motion to dismiss would not likely be granted in the circumstances. Aviva subsequently withdrew this motion.
On June 21, 2005, Aviva brought a further motion for an order requiring the production of largely financial records and documents. Mr. Merwar, on behalf of Mr. Singh, consented to that order at the resumed pre-hearing. Aviva renewed its request for an order of expenses for time thrown away as a result of the conduct of the matter by Mr. Singh and/or his representatives, Mr. Sidhu and Mr. Braithwaite.
The issues are:
Is Aviva entitled to an Order for expenses for time thrown away in the course of this pre-hearing?
If the answer to issue #1 is yes, what amount of expenses is Aviva entitled to?
If the answer to issue # 1 is yes, is an Order pursuant to subsection 282(11.2) of the Insurance Act appropriate in the circumstances?
Result:
Aviva is entitled to an order for expenses for time thrown away.
Aviva is entitled its expenses in the amount of $410.38.
Mr. Sidhu and Mr. Braithwaite are required to personally pay to Aviva $205.19 of the amount of expenses ordered to be paid by Mr. Singh.
ANALYSIS:
Expenses should not normally be awarded on an interim basis and exceptional circumstances must exist before such an order will be made. Such circumstances exist in this case.
This arbitration has been much delayed in large part as a consequence of Mr. Singh and his representatives. The first pre-hearing in this matter was less useful than it should have been, entirely as a consequence of the lack of preparedness of Mr. Singh's representatives.
The first resumption of the pre-hearing was rescheduled from April 1, 2005 in part because of the failure of Mr. Singh's representatives to respond effectively to Aviva's attempts to schedule a meeting of the parties' accountants.
The second resumption on June 3, 2005 was entirely unhelpful because, unbeknownst to the Commission or Aviva, Mr. Singh had changed representatives. As indicated above, neither Mr. Singh nor his prior representatives have ever complied with the Dispute Resolution Practice Code in this regard and, prior to June 3, no notice of the change of representatives had been given to anyone. Accordingly, little beyond identifying who Mr. Singh's new representative was was accomplished on that day. As a consequence of all of this, the hearing dates in June 2005 were adjourned and the hearing will now take place in January 2006.
Aviva is entitled to its costs thrown away as a consequence of the conduct of this matter by Mr. Singh. The June 3 resumption in particular was a waste of time and resources.
Aviva claims fees in the amount of $2,350.12. An amended Schedule of Costs was provided. Neither Mr. Singh, Mr. Sidhu or Mr. Braithwaite commented on the quantum of expenses being sought.
Although discounted somewhat, the expenses outlined in the Schedule of Costs reflects time that cannot be said to have been thrown away by the conduct of Mr. Singh and his representatives. For example, the Schedule includes time preparing and attending at the January 17, 2005 pre-hearing. To my mind, this is not time thrown away. Not every pre-hearing is as productive as it should be, however interim expenses will not be awarded merely because one party was less prepared than they should have been or where, as in this case, production undertakings were not fulfilled expeditiously. These are issues that are more properly taken into account by the hearing arbitrator when assessing the parties' entitlement to expenses in light of their conduct throughout the proceeding.
What is most troubling about this case, and what has given rise to the order here, is the conduct of Mr. Singh subsequent to the initial pre-hearing and the additional expenses associated with that, in particular the aborted pre-hearings of April 1 and June 3, 2005. This would include items 6, 7, 8 and 9 of Ms. Parent's Schedule of Costs - 5.9 hours. I would reduce that by 1 hour to 4.9 hours as the original figures include time spent preparing the motion to dismiss the entire arbitration - a project with no reasonable prospect for success at this stage of the proceeding.
Accordingly, I find that Aviva is entitled to be paid its reasonable expenses on the basis of 4.9 hours at the corresponding rate established by the Legal Aid Tariff for insurer's counsel of $83.75 per hour - $410.38
Subsection 282(11.2)(c) of the Insurance Act empowers an arbitrator to order a representative to pay all or part of an order of expenses where the representative "caused expenses to be incurred without reasonable cause or to be wasted by unreasonable delay or other default."
If for no other reason than their failure to advise anyone that they no longer represented Mr. Singh, Mr. Sidhu and Mr. Braithwaite have failed in their obligations as representatives and have caused expenses to be incurred by Aviva without reasonable cause. I also accept that they appear to have failed utterly in moving the production issues along, with the result that by June 22 little progress had been made despite the agreements on January 17. On the other hand, it is equally unclear why Mr. Singh failed to advise the Commission or Aviva of his change of representative whenever that occurred, with the result that the June 3 resumption was completely unproductive.
In my view, Mr. Singh on the one hand, and Mr. Sidhu and Mr. Braithwaite on the other, are equally responsible for the compensable expenses of Aviva and, accordingly, I order that Mr. Sidhu and Mr. Braithwaite forthwith pay to Aviva 50% of the order payable to Aviva - $205.19.
Mr. Singh is responsible for the balance of my order and shall pay this amount to Aviva in any event, out of any order respecting benefits or in addition to any further order for expenses made at the conclusion of this arbitration proceeding.
October 19, 2005
David Muir Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 149 FSCO A04-001564
BETWEEN:
SARBJIT SINGH Applicant
and
AVIVA CANADA INC. Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Singh shall pay Aviva's expenses for time thrown away in the pre-hearing in the amount of $410.38, subject to order #2, below.
Pursuant to subsection 282(11.2) of the Insurance Act, Mr. Sidhu and Mr. Braithwaite of Alliance Legal Services Inc. shall forthwith personally pay to Aviva 50% of the order of expenses payable to Aviva, in the amount of $205.19.
October 19, 2005
David Muir Arbitrator
Date