Anna Gabrielyan v. Wawanesa Mutual Insurance Company, 2007 ONFSCDRS 251

Financial Services

Commission

of Ontario

Commission des

services financiers

de l’Ontario

Neutral Citation: 2007 ONFSCDRS 251

FSCO A06-001003

BETWEEN:

ANNA GABRIELYAN

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Arbitrator, Denise Ashby

Heard: Written submissions received by August 23, 2007 and a telephone conference call on October 26, 2007.

Appearances: Gary Mazin for Mrs. Gabrielyan

Alexander J.D. Curry for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Anna Gabrielyan, was injured in a motor vehicle accident on March 17, 2005. In a decision dated June 28, 2007, I dealt with her claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of expenses:

Mrs. Gabrielyan is entitled to receive a weekly income replacement for the period from March24, 2005 to June 18, 2005, pursuant to section 4 of the Schedule.
Mrs. Gabrielyan is not entitled to receive a weekly income replacement benefit ongoing

from March 17, 2005 pursuant to subsection 5(2)(b) of the Schedule.

The amount of Mrs. Gabrielyan’s income replacement benefit is $272.45 weekly pursuant to section 6 of the Schedule.
Mrs. Gabrielyan is not entitled to receive a medical benefit for treatment provided by Downsview Health Recovery Centre pursuant to section 14 of the Schedule.
Mrs. Gabrielyan is entitled to a housekeeping benefit, at the weekly rate of $100.00, from March 24, 2005 to April 30, 2005, pursuant to section 22 of the Schedule.
Mrs. Gabrielyan is not entitled to payments for examination expenses claimed pursuant to section 24 of the Schedule.
Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
Mrs. Gabrielyan is entitled to interest for the overdue payment of income replacement benefits and housekeeping benefits, pursuant to subsection 46(2) of the Schedule.

The issue in this further hearing is:

Is Mrs. Gabrielyan entitled to her expenses incurred in respect of this arbitration hearing?
Is Wawanesa entitled to its expenses incurred in respect of this arbitration hearing?
Is Mrs. Gabrielyan entitled to her expenses incurred in respect of this expense hearing?
Is Wawanesa entitled to its expenses incurred in respect of this expense hearing?

Result:

Mrs. Gabrielyan is entitled to her expenses incurred in respect of this arbitration hearing in the amount of $6,092.02, inclusive of disbursements and GST and the expense hearing fixed at $500.00.
Wawanesa is not entitled to its expenses.

EVIDENCE AND ANALYSIS:

Mrs. Gabrielyan submits that as she was partially successful in her claim, she should be compensated for her expenses. Wawanesa submits that Mrs. Gabrielyan was only minimally successful and therefore it should be compensated for having to defend the claim. Each party relied on the Expense Regulation to support its claim for expenses.

Mrs. Gabrielyan submitted a bill of costs for $11,079.12, in the event I exercised my discretion and awarded counsel fees at the maximum hourly rate for Applicant’s counsel of $150.00. In the alternative, $6,092.02, should I determine that the legal aid rate of $73.87 was the applicable counsel rate.

Wawanesa submitted a bill of costs of $13,514.45, in the event I awarded counsel fees for its counsel at the hourly rate of $150.00. In the alternative, at the legal aid rate the total claimed is $7,903.67. On October 26, 2007, I ruled that Wawanesa’s counsel is not entitled to an hourly rate of $150.00, by operation of sub-rule 78.1 of the Dispute Resolution Practice Code (Code).

The Insurance Act is consumer protection legislation.² As well, Section 10 of the Interpretation Act,³ requires that every Act be deemed remedial and receive “such fair, large and liberal construction and interpretation, as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.” Arbitral precedent establishes that the Act, its Schedules and the Code must be interpreted in a purposive fashion which gives meaning to the remedial nature of the legislation.⁴ Therefore, the Expense Regulation must be interpreted in such a way as to uphold both the protective and remedial nature of the legislation from which it flows.

Mrs. Gabrielyan was partially successful in asserting her claim against her first party insurer for both income replacement benefits and housekeeping. Wawanesa submitted that

Mrs. Gabrielyan’s success was nominal. Perhaps the sum is nominal to a large insurance company, but to a person in Mrs. Gabrielyan’s position, unemployed and having a dependant child to support, the loss of benefits was significant. Wawanesa did not offer to settle the claim. It chose to defend the matter and thereby assume the risk of attracting an award of expenses for its failure to pay benefits to its insured. To deny Mrs. Gabrielyan her expenses would undermine the legislative purpose and have a chilling effect on consumers seeking payment for benefits to which they are entitled. Therefore, I find that she is entitled to her expenses.

Mrs. Gabrielyan’s counsel was called to the Bar in 2003. As a consequence, the applicable Legal Aid hourly rate is $73.87. His inexperience was evident, in his failure to summons the housekeeping provider, which caused delay. Therefore, I am not inclined to award a rate higher than that provided for in the Legal Aid Services Act, 1998.

The Bill of Costs submitted by Mrs. Gabrielyan is reasonable and within the ambit of the expenses awarded pursuant to the Expense Regulation.

On the basis of the foregoing, I find that Mrs. Gabrielyan is entitled to her expenses in the amount of $6,092.02.

EXPENSES:

Upon hearing the submissions of counsel, I exercise my discretion to award Mrs. Gabrielyan her expenses in this expense hearing fixed at $500.00.

December 14, 2007

Denise Ashby

Arbitrator

Date