Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 119
FSCO A04-002734
BETWEEN:
JASWINDER K. SINGH
Applicant
and
AVIVA CANADA INC.
Insurer
DECISION ON EXPENSES
Before: Jeffrey Rogers
Heard: By telephone conference call on July 14, 2006.
Appearances:
David F. Longley, solicitor for Mrs. Singh
Cara Boddy, solicitor for Aviva Canada Inc.
Issues:
The Applicant, Jaswinder K. Singh, was injured in a motor vehicle accident on March 9, 2003. In a decision dated March 9, 2006, I dealt with her claims for statutory accident benefits under the Schedule.1 I found that she was not entitled to the caregiver and housekeeping benefits in dispute. I reserved on the issue of expenses.
The issue in this further hearing is:
- Is Aviva entitled to its expenses incurred in respect of this arbitration hearing?
Result:
- Aviva is entitled to its expenses of the hearing in the amount of $4,067.36.
EVIDENCE AND ANALYSIS:
Entitlement
Having been entirely successful in the hearing, Aviva claimed its expenses. Mrs. Singh submitted that the parties should bear their own expenses.
The criteria to be considered by an arbitrator in awarding expenses are prescribed by section 12(2) of O. Reg. 664/90, as amended, which provides as follows :
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:
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.
Neither party submitted that a prescribed offer had been made, that novel issues were raised or that there had been improper conduct in the proceeding. The parties agree that Aviva made an oral offer to settle on terms that the arbitration would be dismissed, without costs. Mrs. Singh submitted that, because of the terms of the offer, she was left no option but to proceed with the arbitration and consequently she should not bear Aviva's expenses. Since the offer was not made as required by subsection 282(11), I find no jurisdiction to consider it. Had I found jurisdiction, I would not deny Aviva its expenses on the basis of the offer because the result of the hearing was as favourable to Aviva as the terms of the offer.
Mrs. Singh withdrew her claim for a medical benefit at the hearing. I do not accept Aviva's submission that the withdrawal means that her claim was unnecessary. There is no evidence that Mrs. Singh did not intend to pursue the claim when she made it and no evidence that it she withdrew the claim for any reason other than the one she gave: a representative of the service provider was not available to testify in support of the claim. I am therefore not satisfied that she made an unnecessary claim.
Since subsection 282(11) provides a complete list of criteria I may consider, I find no jurisdiction to consider Mrs. Singh's financial circumstances. I therefore do not accept the submission that Aviva should be denied its expenses because it is unlikely that Mrs. Singh will be able to pay them.
For the above reasons, I find that the only criterium relevant to entitlement to expenses is the parties' degree of success in the proceeding. Since Aviva was entirely successful, it is entitled to its expenses.
Quantum
Aviva delivered an account claiming fees and disbursements of $5,661.44. Mrs. Singh took no issue with its reasonableness and I find the number of hours claimed for legal fees and the claimed disbursements to be reasonable.
The parties agree that the maximum rate that Aviva may recover for legal fees is the rate established under the Legal Aid Services Act, 1998, S.O. 1998, c. 26 for professional services in civil matters before the Superior Court of Justice, including any applicable experience allowance. I find that the correct applicable rate is $73.87 per hour as set out in Part I, Column 1, of Schedule 2 to O. Reg. 107/99, as amended plus an experience increase of 12.5%, as set out in subsection 24.1, of Part IV, of Schedule 2 of O. Reg. 107/99, as amended. The correct rate is therefore $83.10 per hour, and not $120 per hour, as claimed.
After the adjustment, Aviva is entitled to $3,589.92 for fees, plus disbursements of $477.44 as claimed. Mrs. Singh shall therefore pay Aviva's expenses in the amount of $4,067.36.
July 20, 2006
Jeffrey Rogers
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 119
FSCO A04-002734
BETWEEN:
JASWINDER K. 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:
- Mrs. Singh shall pay Aviva its expenses of the arbitration in the amount of $4,067.36.
July 20, 2006
Jeffrey Rogers
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.