Neutral Citation: 2007 ONFSCDRS 162 FSCO A05-001245

BETWEEN:

VINCENZO CARERE Applicant

and

COACHMAN INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Maggy Murray Heard: By telephone conference call on July 13, 2007.

Appearances: Gino Isabella for Mr. Carere Jamie Pollack for Coachman Insurance Company

Issues:

The Applicant, Vincenzo Carere, was injured in a motor vehicle accident on November 26, 2002. In a decision dated May 22, 2007, I dealt with his claims for statutory accident benefits under the Schedule.¹ I made the following order, while reserving on the issue of expenses:

This arbitration is dismissed pursuant to Rule 68.1 of the Dispute Resolution Practice Code – Fourth Edition (“the Code”).

The issue in this further hearing is:

Is Coachman entitled to its expenses incurred in respect of this arbitration hearing?

Result:

Coachmam is entitled to its expenses of the arbitration proceeding, assessed in the amount of $1,511.34.

EVIDENCE AND ANALYSIS:

Mr. Isabella appeared for Mr. Carere. Expenses were not claimed by Mr. Carere.

Subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8 (as amended), states:

The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

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”). According to Pinto and General Accident Assurance Co. of Canada,² the expense regulation that applies is the regulation in effect at the time the Application for Arbitration was commenced. The expense regulation in effect at the time the Application for Arbitration was commenced (i.e., June 13, 2005), at s.12 states:

12(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.

I consider each of the five criteria in order:

Each party’s degree of success in the outcome of the proceeding.

The hearing concerned whether this arbitration should be dismissed without a hearing because of the Applicant’s failure to attend a pre-hearing on January 17, 2006 and the resumed pre-hearing on January 19, 2007. At the resumed pre-hearing, Coachman requested that I issue a notice, pursuant to Rule 68.2 of the Dispute Resolution Practice Code – Fourth Edition (the "Code") to “all parties of the intention to dismiss the proceeding on the grounds set out in Rule 68.1”.

Mr. Carere did not respond to the issue, although given an opportunity to do so. Consequently, the arbitration was dismissed and I find Coachman is completely successful.

Any written offers to settle made in accordance with subsection (3).

Neither party made any written offer to settle.

Whether novel issues are raised in the proceeding.

The issues raised in the Application for Arbitration are housekeeping, medical and rehabilitation benefits. They are not novel issues.

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.

I find that Mr. Carere prolonged, obstructed and hindered the progress of the proceeding by his failure to attend two pre-hearings.

Whether any aspect of the proceeding was improper, vexatious or unnecessary.

I determined in my decision dated May 22, 2007 in this matter that “Mr. Carere has for reasons unknown abandoned his arbitration. In the absence of any explanation for his conduct I find that this arbitration is frivolous and vexatious.

I therefore find that the proceeding is frivolous and commenced in bad faith.”³

Amount of Expenses:

The amount of expenses and disbursements which I may award are set out in s.3 of the Schedule to Ontario Regulation 664 which states:

3 (1) The legal fees payable by the insured person or the insurer for the following matters may be awarded:

For all services performed before an arbitration, appeal, variation or revocation hearing.
For the preparation for an arbitration, appeal, variation or revocation hearing.
For attendance at an arbitration, appeal, variation or revocation hearing.
For services subsequent to an arbitration, appeal, variation or revocation hearing.

(2) The number of hours for which legal fees may be awarded shall be determined by the arbitrator, having regard to the criteria set out in subsection 12(2) of this Regulation.

Coachman claimed a total of 15 hours of Mr. Pollack’s time (including the time spent at the expense hearing). Based on his years of experience, Mr. Pollack’s maximum allowable hourly is $92.34 per hour. Having regard to the criteria set out in Ontario Regulation 664, Mr. Pollack’s submissions and Mr. Isabella having no objection on behalf of Mr. Carere, I find Coachman's claim for expenses reasonable. Coachman is allowed 15 hours of Mr. Pollack’s time at the maximum hourly rate of $92.34.

Coachman claimed disbursements in the amount of $43.13.

The total allowable expenses of the arbitration proceeding are $1,511.34 inclusive of GST at 6%.

August 27, 2007

Maggy Murray Arbitrator

Date

Financial Services Commission of Ontario