Linda D. Clement v. ING Insurance Company of Canada, 2005 ONFSCDRS 30

Neutral Citation: 2005 ONFSCDRS 30

FSCO A03-001764

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LINDA D. CLEMENT

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

DECISION ON EXPENSES

Before:

Jeffrey Rogers

Heard:

By telephone conference call on February 18, 2005.

Appearances:

Kristian Bonn, solicitor for Mrs. Clement

Douglas A. Wallace, solicitor for ING Insurance Company of Canada

Issues:

In a decision dated November 18, 2004, I dealt with Mrs. Clement's claims for statutory accident benefits under the Schedule.¹ I dismissed the application upon finding that the mobile crane that Mrs. Clement's husband was operating when he and her son were electrocuted, is not an "automobile" as defined. I reserved on the issue of expenses. ING has not pursued a claim for its expenses.

The issues in this further hearing are:

1. Should the 30-day limit of Rule 79 be extended to allow Mrs. Clement to pursue her claim of entitlement to her expenses incurred in respect of this arbitration hearing?

2. Is Mrs. Clement entitled to her expenses incurred in respect of this arbitration hearing?

Result:

1. The time limit of Rule 79 is extended to allow Mrs. Clement to pursue her claim of entitlement to her expenses incurred in respect of this arbitration hearing.

2. Mrs. Clement is not entitled to her expenses.

EVIDENCE AND ANALYSIS:

Extension of time

Rule 79 of the Dispute Resolution Practice Code requires a party seeking an appointment to determine expenses to make a request within 30 days of the date of the decision on the other issues in dispute. Here, the request was made 55 days after the decision. Counsel for the Applicant had requested his expenses 20 days after the decision but missed the deadline because of involvement in a lengthy trial. Counsel for ING opposed granting an extension of time but made no submissions except that Rule 79 had been breached.

I find that, since the delay was not excessive, there was always an intention to seek expenses and the breach of Rule 79 was inadvertent, the discretion conferred by Rule 81 should be exercised in favour of the Applicant, in order to allow the claim for expenses to be decided on its merits.

Entitlement to Expenses

The factors to be considered by an arbitrator in awarding expenses are prescribed by section 12(2) of O. Reg. 664 :

12. (2) An arbitrator shall, under subsection 282(11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

13. Each party's degree of success in the outcome of the proceeding.

14. Any written offers to settle made in accordance with subsection (3).

15. Whether novel issues are raised in the proceeding.

16. The conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.

17. Whether any aspect of the proceeding was improper, vexatious or unnecessary.

The only criteria relevant to the decision in this case are degree of success and whether a novel issue was raised. Having been entirely successful, ING would normally be entitled to its expenses. Counsel for Mrs. Clement argued that, despite her lack of success, his client is entitled to her expenses because her application raised a novel issue.

I do not agree that the application raised a novel issue. Although there had been no previous decision on whether a mobile crane was an "automobile", there was established authority upon which the assessment could be based.

In any event, had I found that Mrs. Clement raised a novel issue, I would not have awarded her expenses. Applying the prescribed criteria, this would at best relieve her of the obligation to pay expenses.

Counsel for Mrs. Clement relied on the decision in Cruz and Royal & SunAlliance Insurance Company of Canada.² There, the arbitrator awarded expenses to the unsuccessful party by giving weight to concerns about access to justice. The Regulation has since been amended to make the relevant criteria more restrictive and to make the list of relevant factors exhaustive. With the amendment it is no longer reasonable to exercise discretion in such a way that a successful party is penalized, absent some misconduct in the proceeding.

I therefore find that Mrs. Clement is not entitled to her expenses of the hearing.

March 10, 2005

Jeffrey Rogers

Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 30

FSCO A03-001764

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LINDA D. CLEMENT

Applicant

and

ING 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:

1. The time limit of Rule 79 is extended to allow Mrs. Clement to pursue her claim of entitlement to her expenses incurred in respect of this arbitration hearing.

2. Mrs. Clement is not entitled to her expenses of the hearing.

March 10, 2005

Jeffrey Rogers

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(FSCO A00-001179, September 14, 2001)