Jibril Jama v. Dominion of Canada General Insurance Company, 2007 ONFSCDRS 135

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 135

Appeal P05-00033

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JIBRIL JAMA Appellant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY Respondent

BEFORE: David Evans

REPRESENTATIVES: Jibril Jama, acting for himself Christina Clare for Dominion of Canada General insurance Company

HEARING DATE: April 18, 2007

APPEAL EXPENSES ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Jama shall pay Dominion of Canada General Insurance Company’s arbitration expenses in the amount of $6,300.00.
2. Mr. Jama shall pay Dominion of Canada General Insurance Company’s appeal expenses in the amount of $1,500.00

July 5, 2007

David Evans Director’s Delegate

Date

REASONS FOR DECISION

BACKGROUND AND ANALYSIS

Mr. Jama claimed income replacement benefits under the SABS–1996¹ for injuries arising out of a motor vehicle accident on October 6, 2003.

In his decision of October 27, 2005, the arbitrator made a number of findings arising out of the four-day hearing. He found that Mr. Jama lacked credibility on a number of important points and that this significantly undermined his claim that he had been prevented from performing his pre‑accident employment as a result of the accident. He found that Mr. Jama misrepresented his pre-accident medical condition and employment situation, the nature of his injuries and the reasons he discontinued his employment. For instance, he found that Mr. Jama left his job, not as a result of the accident, but due to the disputes he had at work with management coupled with his poor performance. He denied Mr. Jama’s claim for further benefits and ordered him to repay benefits to Dominion.

The appeal before me turned mostly on technical points that I found had no merit and did not detract from the strength of the arbitrator’s decision, which I upheld.

Dominion now seeks its expenses of the arbitration and the appeal. The criteria for determining entitlement to expenses of the arbitration proceeding are set out in s.12 of Ontario Regulation 664, R.R.O. 1990, as amended (the “expense regulation”). The expense regulation has been amended since the date Mr. Jama filed his Application for Arbitration, but as set out in the Howden appeal decision,² it is the present version of the expense regulation that governs and not the one that governed when Mr. Jama filed for arbitration.

Given Dominion’s success at arbitration and on appeal, and the findings the arbitrator made against Mr. Jama, I find that the most relevant criterion is the first, namely the parties’ respective degree of success. Indeed, Mr. Jama did not make any submissions that he should be entitled to his expenses.

Mr. Jama argued that the insurer’s claim seemed a bit high and that he had no funds to pay the expenses. His only offer to the insurer was to repay the amount that had already been ordered to be repaid by the arbitrator.

Dominion claims for a counsel fee at the arbitration based on 71.8 hours of preparation and attendance. Considering that the hearing lasted four days, this is little more than a one to one ratio of preparation time to hearing time. In addition, about 10 hours are claimed for the assistance of a clerk. These hours are reasonable. Accordingly, I allow the fees of $5,500.00. As for the disbursements claimed, I am deducting the court reporter fee, as no transcript was ordered. I allow disbursements of $800.00. I do note that Dominion did not claim for the expenses of having an expert testify.

Regarding the appeal expenses, most of Dominion’s claim is for the counsel fee for about 21 hours, which is reasonable considering the research that was required. I allow expenses for the appeal of $1,500.00

In conclusion, Mr. Jama shall pay Dominion of Canada’s arbitration expenses in the amount of $6,300.00 and appeal expenses in the amount of $1,500.00.

July 5, 2007

David Evans Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Pembridge Insurance Company and Howden, (FSCO P02-00031, May 17, 2004).