Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 55
FSCO A04-000161
BETWEEN:
JOSE PEREIRA
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before: William J. Renahan
Heard: By telephone conference call on February 26, 2006.
Appearances:
Mr. Pereira represented himself
Tricia McAvoy for Kingsway General Insurance Company
Issues:
The Applicant, Jose Pereira, was injured in a motor vehicle accident on September 11, 2001. In a decision dated October 14, 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. Pereira is entitled to income replacement benefits pursuant to section 4 of the Schedule from April 5, 2003 to May 4, 2004 together with interest from April 19, 2003 on overdue payments at the rate of two per cent per month compounded monthly.
- Mr. Pereira withdrew his claim for attendant care benefits.
- Mr. Pereira withdrew his claim for housekeeping expenses.
- Kingsway indicated that it paid for the assessments performed by International Health Assessments Corporation. Mr. Pereira is not entitled to the cost of the functional abilities evaluation performed by Finch Weston Assessment Centre.
- Mr. Pereira is not entitled to a special award.
The issue in this further hearing is:
- Is either party entitled to expenses incurred in respect of this arbitration hearing?
Result:
- Each party shall bear their own expenses of the arbitration hearing.
EVIDENCE AND ANALYSIS:
The criteria for determining entitlement to and the amount of expenses of an arbitration proceeding are contained in section 12 of Ontario Regulation 664, R.R.O. 1990 as amended.
I consider each of the five criterion as follows:
1. Each party's degree of success in the outcome of the proceeding.
Mr. Pereira recovered more than $20,000 in income replacement benefits together with interest. He withdrew claims for attendant care benefits and housekeeping expenses and failed to recover $1,070 he claimed for a functional capacity evaluation or anything for a special award. Overall, Mr. Pereira was more successful then Kingsway.
2. Any written offers to settle made in accordance with subsection (3).
I had no information that such offers were made.
3. Whether novel issues are raised in the proceeding.
No novel issues were raised.
4. 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.
At the commencement of the proceeding, Mr. Pereira consented to the withdrawal of his representative. During cross-examination of Mr. Pereira, it was clear that Mr. Pereira fabricated his claims for attendant care and housekeeping expenses. I find it likely that he realized that these claims had no merit and that is why he asked to withdraw them. The hearing concluded in less than a day.
5. Whether any aspect of the proceeding was improper, vexatious or unnecessary.
On assessing Mr. Pereira's credibility, I wrote: "I did not find Mr. Pereira a credible witness. I find that he would say anything in an attempt to prove his claim, whether it was true or not." I find that the claims for attendant care and housekeeping expenses were frivolous.
Having regard to these criteria, I find that each party should bear their own expenses of this arbitration proceeding.
April 11, 2006
William J. Renahan
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 55
FSCO A04-000161
BETWEEN:
JOSE PEREIRA
Applicant
and
KINGSWAY GENERAL 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:
- Each party shall bear their own expenses of this arbitration proceeding.
April 11, 2006
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.