Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 119

FSCO A04-002632

BETWEEN:

BILAL MOUCHO

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

DECISION ON QUANTUM OF EXPENSES

Before:

Eban Bayefsky

Heard:

Written submissions received by January 19, 2007.

Appearances:

Mr. Moucho was not represented and made no submissions

Dan Rabinowitz for ING Insurance Company of Canada

Issues:

The Applicant, Bilal Moucho, was injured in a motor vehicle accident on August 11, 2003. In a decision dated December 8, 2006, I dealt with his claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of the quantum of expenses:

Mr. Moucho's arbitration is dismissed.
Mr. Moucho shall pay to ING its reasonable expenses of the arbitration, as agreed to or as determined by me in accordance with the procedure set out in the body of this decision.

In the decision, I stated that the parties were to provide their submissions, if any, by the following dates: ING's submissions by December 22, 2006; Mr. Moucho's submissions by January 12, 2007; ING's reply by January 19, 2007.

ING did not make any submissions by December 22, 2006. Mr. Moucho did not make any submissions by January 12, 2007. As with most of the other correspondence recently sent to Mr. Moucho's last known address, my December 8, 2006 decision was returned to the Commission.

By letter dated January 17, 2007, Mr. Rabinowitz stated that due to a "filing error on [his] part," my December 8, 2006 decision (which set out the timelines for submissions on expenses) did not come to his attention until January 16, 2007. Mr. Rabinowitz indicated that ING still wished to pursue the issue of expenses and asked if I would consider his client's claim if he forwarded his submissions by January 19, 2007. Mr. Rabinowitz's January 17, 2007 letter was not brought to my attention until January 22, 2007. By that time, undoubtedly out of an abundance of caution, Mr. Rabinowitz had also forwarded his submissions on the issue of expenses. These were also brought to my attention on January 22, 2007.

I accept that Mr. Rabinowitz's failure to provide his submissions on expenses by December 22, 2006 was inadvertent. In any event, he provided them by the date upon which his reply to Mr. Moucho's submissions (had there been any) would have been due. I am prepared to consider Mr. Rabinowitz's submissions. I am also prepared to consider the matter of expenses in the absence of any submissions from Mr. Moucho, essentially due to my having dismissed his arbitration as abandoned (but, specifically, due to his having continued not to notify the Commission of any change of address).

Therefore, the issue in this further hearing is:

What is the amount that Mr. Moucho shall pay to ING for its reasonable expenses of the arbitration?

Result:

Mr. Moucho shall pay to ING arbitration expenses in the amount of $2,141.35.

EVIDENCE AND ANALYSIS:

Section 12 of Regulation 664, R.R.O. 1990, as amended, sets out the following regarding the awarding of expenses:

(2) 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.
Whether the insured person refused or failed to submit to an examination as required under section 42 of the Schedule, or refused or failed to provide any materials required to be provided by subsection 42(10).

ING was entirely successful in this matter, as Mr. Moucho's arbitration was dismissed as abandoned. I am not aware of any offers to settle. The proceeding did not raise any novel issues. Mr. Moucho's failure to provide certain productions agreed to at the initial pre-hearing conference on June 28, 2005 resulted in a resumption of the pre-hearing on December 15, 2005. On August 1, 2006, Mr. Moucho's representatives brought a motion to withdraw from the proceeding on the basis of their inability to contact Mr. Moucho to obtain proper instructions and to prepare for the arbitration. I allowed the motion. Mr. Moucho failed to attend at the hearing or to otherwise pursue the arbitration. In these circumstances, I find that Mr. Moucho's conduct tended to prolong, obstruct or hinder the proceeding, and, to this extent, rendered a number of steps in the proceeding unnecessary.

ING sought its expenses for the following items:

Counsel fees for preparation and attendance at the pre-hearing and arbitration

Amelia Leckey

$ 1,226.24 (16.6 hours at $73.87 per hour)

Dan Rabinowitz

849.51 (11.5 hours at $73.87 per hour)

GST

124.55

Disbursements:

photocopies

$ 414.50

faxes

13.00

courier

56.14

GST

33.85

Total fees, disbursements and GST

$2,717.79

I am prepared to grant ING's request for counsel fees except in respect of the initial pre-hearing conference. Both parties were expected to participate and did so, with no evidence of any delay or improper conduct at that time. In my view, Mr. Moucho's subsequent failure to provide productions or to otherwise pursue his arbitration should be considered in the context of the expenses incurred by ING for the pre-hearing resumption, the motion and the hearing.

On this basis, ING would be entitled to counsel fees of $1,536.50 (20.8 hours at $73.87 per hour), disbursements of $483.64 and GST of $121.21 ($92.19 for fees and $29.02 for disbursements). ING is, therefore, entitled to arbitration expenses in the amount of $2,141.35.

June 12, 2007

Eban Bayefsky Arbitrator

Date