Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 110
FSCO A04-000034
BETWEEN:
AKUA AFRIYIE
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
DECISION ON EXPENSES
Before:
Rosemary Muzzi
Heard:
March 24, 2006, via teleconference
Appearances:
Joseph J. Faust on record for Ms. Afriyie, but not appearing
Norma Priday for TTC Insurance Company Limited
Issues:
The Applicant, Akua Afriyie, was injured in a motor vehicle accident on June 4, 2003. She made claims for statutory accident benefits under the Schedule,1 which could not be resolved through mediation. Her claims proceeded to an arbitration hearing, which was conducted in two parts: the first part of the hearing concerned whether an accident occurred; the second part explored whether Ms. Afriyie was entitled to the benefits she claimed.
In two separate decisions, I dealt with the relevant issues. I made the following orders, while reserving on the issue of expenses:
By order dated March 21, 2005, I found that Ms. Afriyie was involved in an accident on June 4, 2003.
By order dated January 13, 2006, I found that Ms. Afriyie was not entitled to income replacement benefits or payments for housekeeping services or the costs of three examinations.
By letter dated February 13, 2006, TTC Insurance Company Limited ("TTC Insurance") requested a hearing before me to determine the issue of expenses. As assessment of expenses hearing was set for March 24, 2006 at 1:00 p.m., by teleconference. Only TTC Insurance participated.
The issue in this further hearing is:
Is TTC Insurance entitled to its expenses incurred in respect of the arbitration proceeding?
Result:
Each party shall bear its own expenses of the arbitration proceeding.
EVIDENCE AND ANALYSIS:
Along with its request for an assessment hearing, TTC Insurance submitted its Bill of Costs, which indicated the following expenses:
legal fees of $2,300 for preparation of the Response to Application for Arbitration, preparing summons to witness, and attendance at a 1 day arbitration hearing.
disbursements of $1,595.24 which comprise $1,295.24 for a court reporter and the production of transcripts and $300 for photocopies, courier and facsimiles.
Ms. Priday, for TTC Insurance, asserted that her client should recover some of its costs especially in light of her unacknowledged efforts to settle the matter of costs with Ms. Afriyie's representative.
Neither Ms. Afriyie nor her counsel of record, Mr. Faust,2 participated in the assessment hearing though both had been duly notified of the proceedings by notice from this office dated February 22, 2006. Furthermore, the file notes indicate that this date was sent on consent of the parties.
The criteria for determining entitlement to expenses3 are these
Each party's degree of success in the outcome of the proceeding
Any written offers to settle made in accordance with subsection (3)
Whether novel issues are raised in the proceeding
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
Whether any aspect of the proceeding was improper, vexatious or unnecessary
As was conceded by TTC Insurance, each party was successful in part. Ms. Afriyie was successful in persuading me that an accident had occurred. She did not, however, satisfy me that she was entitled to the benefits she claimed, so TTC Insurance successfully defended these claims.
TTC Insurance did not argue the relevance of any of the other criteria and I find that none of the other four enumerated criteria is, in fact, applicable to the circumstances of this case. I note in particular that while TTC Insurance made an offer to settle expenses, such offer is not the kind contemplated by the second criterion.
It is generally accepted that the specific listed criteria are now the only factors to be considered in determining entitlement to expenses.
Conclusion:
Given mixed success in the proceeding and the fact that no other criteria applied to the advantage of one party over the other, I find that the most appropriate result, consistent with the criteria, is for the parties to bear their own expenses.
June 28, 2006
Rosemary Muzzi
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 110
FSCO A04-000034
BETWEEN:
AKUA AFRIYIE
Applicant
and
TTC INSURANCE COMPANY LIMITED
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 its own expenses of the arbitration proceeding.
June 28, 2006
Rosemary Muzzi
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- While Mr. Richard Gordon had represented Ms. Afriyie for both parts of her arbitration hearing, this office and the TTC were informed by letter dated August 10, 2005, that Ms. Afriyie's new representative was Joseph J. Faust, Barrister and Solicitor.
- Regulation 664, R.R.O. 1990, as amended