Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 171
FSCO A03-000598
BETWEEN:
SHUN GUAN ZHUO
Applicant
and
PEMBRIDGE INSURANCE COMPANY (subsidiary of Allstate Insurance Company of Canada)
Insurer
DECISION ON EXPENSES
Before:
Anne Sone
Heard:
By a telephone conference call and written submissions received by October 27, 2006.
Appearances:
Michael S. Brown for Mr. Zhuo
John D. Dean for Pembridge Insurance Company
Issues:
The Applicant, Shun Guan Zhuo, was injured in a motor vehicle accident on May 8, 2001. In a decision dated June 2, 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. Zhuo is not entitled to receive a weekly income replacement benefit.
Mr. Zhuo is not entitled to receive a medical benefit for massage, physiotherapy or transportation expenses.
Mr. Zhuo is not entitled to payments for housekeeping and home maintenance services.
The issue in this further hearing is:
- Is Mr. Zhuo liable to pay Pembridge's expenses incurred in respect of this arbitration hearing under subsection 282(11) of the Insurance Act, and if so, in what amount?
Result:
- Mr. Zhuo is liable to pay Pembridge's expenses incurred in respect of this arbitration hearing in the amount of $1,846.74, plus $110.80 GST, for legal fees; and in the amount of $607.56, plus $36.45 GST, for disbursements, which totals $2,601.55.
EXPENSES:
Entitlement
Subsection 282(11) of the Insurance Act gives arbitrators the discretion to award expenses to parties at an arbitration hearing, according to criteria prescribed by the Regulations. Pembridge brings its claim for expenses under Regulation 6642 of the Insurance Act. At the expense hearing, Mr. Zhuo did not pursue a claim for expenses against Pembridge.
The current version of Regulation 664 requires an arbitrator to apply the following criteria:
(a) each party's degree of success in the outcome of the proceeding;
(b) any written offers to settle made in accordance with Rule 76;
(c) whether novel issues are raised in the proceeding;
(d) 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; and
(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.
These criteria, which are set out in section 12 of Regulation 664, are repeated in Rules 75 and 76 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October2003). No offer to settle was served in this matter.
With respect to criterion (c), the issues in dispute were not novel.
I find that the only relevant criteria are (a), (d) and (e), as set out above.
I set out the details of my dismissal of Mr. Zhuo's claims in my decision dated December 28, 2005. The hearing in this matter was scheduled for July 5, 2004, at 10:00 a.m. at the Commission. Mr. Zhuo was unrepresented and did not attend. The matter proceeded at 10:30 a.m. without Mr. Zhuo present. Pembridge filed various documents and made submissions asking me to dismiss his claims for accident benefits. Mr. Zhuo later alleged that he had been unaware of the date of the hearing. At his request, the hearing was re-opened, and the date of June 2, 2005 was set for the purpose of hearing submissions as to whether Mr. Zhuo received adequate notice of the original hearing date. Once again, Mr. Zhuo did not attend. However, this time his counsel, Mr. Brown, attended. He did not have an explanation as to why his client was not present.
At the previous resumption of pre-hearing, on February 17, 2004, at which an interpreter provided by the Commission was present. Arbitrator Allen advised Mr. Zhuo that the new dates scheduled for his hearing were July 5, 6, 7 and 8, 2004. This was confirmed in writing to Mr. Zhuo by a Notice of Re-Scheduled Hearing dated February 18, 2004 sent to his last known address. A Notice of Hearing for the June 2, 2005 date for hearing submissions was sent to Mr. Zhuo’s last known address on April 1, 2005. I found in my decision that the formal Notices for both the re-scheduled hearing commencing July 5, 2004, and for the submissions to be heard on June 2, 2005 complied with the notice requirements of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Mr. Zhuo did not provide me any evidence of exceptional or extraordinary circumstances that persuaded me that his case should be re-opened. Accordingly, I was not prepared to do so.
I then went on to consider Mr. Zhuo’s claim for accident benefits. At page 7 of my decision, I stated as follows:
Mr. Zhuo has claimed income replacement, medical, transportation and housekeeping benefits under the Schedule. He has not presented any evidence to support these claims. Furthermore, there are discrepancies which give me cause for concern. Mr. Zhuo bases his claim for income replacement benefits on an assertion in his Application for Accident Benefits dated June 6, 2001 that he worked as a dishwasher and kitchen helper at Dynasty Chinese Cuisine from June 2000 to May 8, 2001 at the rate of $550 per week. However, a letter dated November 18, 2001 from Dynasty Chinese Cuisine states that Mr. Zhuo was a temporary part-time helper as a dishwasher for three weeks from March 5 to 25, 2001. He was paid a sum of $350 per week cash. Therefore, he was not actually employed at the time of the accident. There is no medical evidence to support Mr. Zhuo’s claim for any of these benefits. There was no credible evidence to support his assertion that housekeeping and home maintenance was done by a third party. In addition, there was no evidence that the taxi receipts he provided were for transportation to and from treatment. Pembridge alleges that the dates on most of the receipts do not match treatments or attendance at his doctor.
Mr. Zhuo did not present any evidence to support his claims and, as a result, he did not discharge his burden of proof. Therefore, I dismissed his claims for income replacement, medical, transportation and housekeeping benefits.
At the expense hearing, Mr. Zhuo’s counsel, Mr. Brown, submitted that due to Mr. Zhuo’s issues regarding notice and his language barrier, I should not make an award of expenses against him. In addition, he suggested that a substantive hearing on the benefits never happened.
However, in my decision at page 4, I found that Mr. Zhuo received proper notice of both the July 5, 2004 and June 2, 2005 hearing dates. In addition, he had an interpreter supplied by the Commission at all the relevant times. He did not provide any evidence of any exceptional or extraordinary circumstances to support the re-opening of his case, and I prepared a decision based on the evidence placed before me on July 5, 2004. Mr. Zhuo did not appeal my decision. Accordingly, I must render my decision on the expense hearing on the basis of my findings. I apply criterion (a) of Rule 75 in Pembridge’s favour since Pembridge was clearly successful regarding all substantive claims in the outcome of the hearing.
Concerning the issue of conduct under criterion (d), Pembridge submitted that Mr. Zhuo’s conduct of the case caused a delay in the proceedings. I agree. His failure to attend on the two hearing dates, despite receiving notice, did delay the proceedings.
I also agree with Pembridge that their second attendance at the Commission to respond to Mr. Zhuo's request to re-open the proceedings was unnecessary, given his lack of attendance and failure to provide any evidence, pursuant to criteria (e).
As a result of my findings in connection with criteria (a), (d) and (e) as set out above, I find Pembridge is entitled to payment of its legal expenses, as quantified below.
Quantum:
Pursuant to Rule 75 of the Code, the maximum amount that may be awarded to an insured person or an insurer for legal fees, is an amount calculated using the hourly rates established under the Legal Aid Services Act,1998, S.O. 1998, c. 26, for professional services in civil matters before the Ontario Superior Court of Justice.
On behalf of Pembridge, Mr. Dean, who was called to the bar in 1980, and who has 26 years of legal experience, claimed an hourly rate of $87.40; Monika Liberek, who was called to the bar in 2002, and who has four years of legal experience, claimed an hourly rate of $79.14; and Mary Jane Crawford, who has 17 years of experience as a law clerk, claimed an hourly rate of $23. I find these rates to be reasonable, in accordance with the Legal Aid Tariff hourly rates.
Pembridge submitted a Bill of Costs claiming a total of $5,212.92, plus GST for legal fees. This included $923.37 for two days of non-consecutive attendance at the Commission for the arbitration hearing. As this was a relatively straightforward case, I find it reasonable to order an equal amount of $923.37, for preparation time, which comes to a total of $1,846.74, plus 6% GST.
Disbursements:
Pembridge claimed $607.56, plus GST for disbursements. Mr. Zhuo did not dispute any aspect of this amount, and I find these reasonable.
Conclusion:
For all of the above reasons, I order Mr. Zhuo to pay Pembridge's legal fees in the amount of $1,846.74, plus $110.80 GST at 6%; and disbursements in the amount of $607.56, plus $36.45 GST at 67%, which totals $2,601.55.
November 3, 2006
Anne Sone
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 171
FSCO A03-000598
BETWEEN:
SHUN GUAN ZHUO
Applicant
and
PEMBRIDGE INSURANCE COMPANY (subsidiary of Allstate 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:
- Mr. Zhuo shall pay Pembridge Insurance Company its legal fees in the amount of $1,846.74, plus $110.80 GST; and disbursements in the amount of $607.56, plus $36.45 GST, which totals $2,601.55.
November 3, 2006
Anne Sone
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Regulation 664, R.R.O. 1990, was amended by Regulation 275/03 effective July 2, 2003.