Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 183
FSCO A04-001424
BETWEEN:
LOURDES URGILES
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON EXPENSES
Before:
Rosemary Muzzi
Heard:
By telephone conference call on August 11, 2006. Written submissions were received on July 14, 2006 and on August 8, 2006.
Appearances:
Bhim Goordial for Ms. Urgiles John D. Dean for Allstate Insurance Company of Canada
Issues:
The Applicant, Lourdes Urgiles, was injured in a motor vehicle accident on November 5, 2003. In a decision dated May 8, 2006, I dealt with her claims for statutory accident benefits under the Schedule.1 I made the following orders, while reserving on the issue of expenses:
Ms. Urgiles is not entitled to payment of IRBs of $341.90 per week from January 21, 2004 to November 30, 2004.
Ms. Urgiles is not entitled to payments for treatment at Four Winds. Ms. Urgiles is only entitled to payments for treatment incurred at Gateway to the end of August 2004.
Ms. Urgiles is entitled to payments for housekeeping expenses at $100 per week from December 18, 2003 to January 20, 2004.
Ms. Urgiles is not entitled to payments for the costs of the two assessments performed by Dr. Baird.
Ms. Urgiles is not entitled to a special award.
Ms. Urgiles is entitled to interest on all outstanding amounts in accordance with section 46(2) of the Schedule.
The issue in this further hearing is:
Is either party entitled to expenses incurred in respect of the arbitration proceeding?
Result:
Each party shall bear their own expenses of the arbitration proceeding.
EVIDENCE AND ANALYSIS:
In awarding expenses, an arbitrator is only to consider the criteria enumerated in section 12(2) of O. Reg. 664/90, as amended, which are:
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.
Both parties claimed entitlement to their expenses2 and referenced criteria 1, 3, 4 and 5. Having considered the submissions and the circumstances of this case, I find that criteria 3, 4 and 5 are irrelevant for the following reasons.
Criterion 3: Novel issues
Ms. Urgiles asserted that her claim for payment of the two assessments conducted by Dr. Baird was novel in that the very nature of the assessments themselves was novel. Allstate argued that the issue pursued at the hearing is in fact a common type of claim advanced at arbitration hearings and requires only a straightforward analysis.
I agree with Allstate. While the assessments performed by Dr. Baird are somewhat unusual and not commonly seen in motor vehicle accident cases, the issue pursued at the hearing and upon which I made my decision was of the typical variety: were the fees reasonable and charged by a member of a health care profession for conducting an assessment or examination and preparing a report, where the assessment or examination and the report are reasonably required in connection with a benefit claimed or the preparation of a treatment plan, disability certificate, assessment of attendant care needs in Form 1 or application for the determination of a catastrophic impairment
Criteria 4 and 5: Conduct of a party or a party's representative tending to prolong, obstruct or hinder the proceeding; and, Aspect of the proceeding being improper, vexatious or unnecessary
Allstate argued that the conduct of Ms. Urgiles former representative had prolonged the proceedings and that he had improperly or unnecessarily pursued issues. In particular, Allstate asserted that an inordinate amount of hearing time was devoted to Dr. Baird's process and the doctor's concerns regarding his assessments. In Allstate's view, the hearing seemed to be driven by Dr. Baird, and Ms. Urgiles claims were not the primary focus. Allstate argued that, in fact, the matter might not have proceeded at all but for the concerns of Dr. Baird and his expensive assessments.
Further, Allstate argued that the special award claim and the claim with respect to the account at Four Winds should not have been pursued because there was no or very little persuasive evidence advanced in this regard. Allstate argued that these claims should have been withdrawn with the result that the hearing could have proceeded more expeditiously.
Allstate conceded, however, that Ms. Urgiles' representative at the arbitration hearing had no choice but to pursue the case as it had been framed because Ms. Urgiles' former representative had removed himself from the record at the eleventh hour due to a conflict of interest.
Allstate asked me to consider whether something could be done in a situation where the former representative is responsible for prolonging the proceeding and pursuing unmeritorious claims. Allstate could point to no previous jurisprudence on this point and I am not satisfied that I have any jurisdiction to award expenses against a former representative and I therefore decline to do so.
Degree of success
This criterion is the only one relevant to my decision on expenses.
I found in Ms. Urgiles' favour with respect to:
some payments for housekeeping expenses
some of the treatment expenses incurred at Gateway Rehabilitation and Health Institute, one of the treatment facilities she attended
She failed to prove her claims for income replacement benefits, for payment of Dr. Baird's two assessments and for treatment she received at a second treatment facility.
For Allstate, Mr. Dean argued that the insurer had successfully defended substantially all of the claims. In terms of financial worth, while Ms. Urgiles' claims amounted to approximately $33,000, she was only awarded one tenth that amount.
I am not persuaded that in this case I should analyse this criterion on a strict financial worth basis. Ms. Urgiles was successful in the pursuit of some of her claims. Some of her claims had merit and others did not. Therefore, I find that the arbitration resulted in a mixed success.
Conclusion:
Given the 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.
November 16, 2006
Rosemary Muzzi Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 183
FSCO A04-001424
BETWEEN:
LOURDES URGILES
Applicant
and
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:
- Ms. Urgiles and Allstate shall bear their own expenses of the arbitration proceeding.
November 16, 2006
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Each party submitted its Bill of Costs. Allstate's total bill of $22,054.07 was divided between fees of $11,683.04, disbursements of $9,610.57 and GST of $760.46. Ms. Urgiles' representative's bill was for a total of $5,294.63, divided as $3,022 for fees, $1,926.25 for disbursements and $346.38 for GST.