Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 3
FSCO A04-000559
BETWEEN:
DUNG CHAU
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
Eban Bayefsky
Heard:
By telephone conference call on December 12, 2005.
Appearances:
George Malakassiotis for Mrs. Chau
Mark K. Donaldson for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant's daughter, Ms. Ngoc Truong, was fatally injured in a motor vehicle accident on March 15, 2003. In a decision dated August 26, 2005, I dealt with Mrs. Chau's claim for death benefits under the Schedule.1 I made the following order, while reserving on the issue of expenses:
- Mrs. Chau's claim for death benefits pursuant to section 25 of the Schedule is dismissed.
The issue in this further hearing is:
- Is either party entitled to its expenses incurred in respect of this arbitration hearing?
Result:
- State Farm is entitled to its reasonable expenses of the arbitration.
EVIDENCE AND ANALYSIS:
The parties only sought a determination on the issue of their entitlement to expenses. They advised that, subject to my ruling on this issue, they would attempt to resolve the quantum of any expenses owing.
Pursuant to Rule 75.1 of the Dispute Resolution Practice Code, Fourth Edition, an arbitrator may award expenses to a party if satisfied that the award is justified having regard to the criteria set out in Rule 75.2 of the Code. Pursuant to Rule 75.2, in considering an award of expenses, the arbitrator will consider only the following criteria (set out in the Expense Regulation, Regulation 664, R.R.O. 1990, as amended), each of which I will address in turn:
(a) each party's degree of success in the outcome of the proceeding
State Farm was successful on the principal issue in the hearing, namely, whether Mrs. Chau was entitled to death benefits under section 25 of the Schedule by virtue of her being principally dependent for financial support on her daughter, Ms. Truong. I found that Mrs. Chau was not so dependent. Specifically, I found that Mrs. Chau failed to establish any of the relevant sub-issues in the case, namely, the sources of her income, the amount of her income or the nature and extent of her monthly expenses. I concluded that Mrs. Chau had failed to discharge the onus on her of establishing her financial dependence on her daughter.
(b) any written offers to settle made in accordance with Rule 76
The parties advised that there were no written offers to settle exchanged after the conclusion of mediation and before the conclusion of the hearing, as set out in Rule 76.1(b) of the Schedule.
(c) whether novel issues are raised in the proceeding
The case required the consideration of various documents, as well as reference to the applicable legal principles on dependency, but did not involve novel issues.
(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
Neither party engaged in conduct that delayed or hindered the proceeding. Both parties and their representatives proceeded in an efficient and professional manner.
(e) whether any aspect of the proceeding was improper, vexatious or unnecessary
While I found Mrs. Chau's evidence to be insufficient for the purposes of establishing the requisite degree of financial dependence, I do not find that any aspect of the proceeding was improper, vexatious or unnecessary. I found that the case raised legitimate issues for determination.
Conclusion
Mrs. Chau's representative, Mr. Malakassiotis, submitted that he and Mrs. Chau's family honestly believed that they had sufficient evidence to establish the requisite degree of dependence and that he ought to be compensated for his time in presenting the case. Mr. Malakassiotis also submitted that I ought to take into account the sensitive nature of this case in addressing the issue of costs, namely, Mrs. Chau's claim for death benefits in relation to the loss of her daughter. While I am aware of the difficult personal circumstances of this case, I find that any consideration of this aspect of the case must be done in the context of the applicable statutory provisions, which mandate that I focus on the above criteria in determining the issue of expenses.
In considering these criteria, and in the particular circumstances of this case, I find that State Farm is entitled to its reasonable expenses of the proceeding. Mrs. Chau and her representative proceeded efficiently with this matter and legitimately addressed the issues in this case (honestly believing in the merits of what was admittedly a sensitive case). However, State Farm legitimately raised the issue of principal financial dependence, it was entirely successful in the arbitration (Mrs. Chau having failed to establish any of the basic elements of the question of dependence), Mrs. Chau did not submit any post-mediation written offers to settle, and did not raise any novel issues in the proceeding. Further, in my view, a representative is not entitled to be compensated for his or her efforts in presenting a case if the client is not otherwise entitled to their expenses of the hearing. Therefore, in all of the circumstances, I find that State Farm is entitled to its reasonable expenses of the arbitration.
January 6, 2006
Eban Bayefsky
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 3
FSCO A04-000559
BETWEEN:
DUNG CHAU
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mrs. Chau shall pay to State Farm Mutual Automobile Insurance Company its reasonable expenses of the arbitration.
January 6, 2006
Eban Bayefsky
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.