Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 8
FSCO A05-002629
BETWEEN:
CHANDRAKUMARAN VELLIPURAM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
Maggy Murray
Heard:
By telephone conference call on December 15, 2006.
Appearances:
David S. Wilson for Mr. Vellipuram
Elsie Plytas for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Chandrakumaran Vellipuram, was injured in a motor vehicle accident on January 1, 2004. In a decision dated June 15, 2006, I dealt with two preliminary issues and made the following order, while reserving on the issue of expenses:
State Farm is not entitled to an Order permitting it to schedule post-104 week examinations of Mr. Vellipuram.
I have no jurisdiction to Order Mr. Vellipuram to attend post-104 week examinations.
The issue in this hearing is:
- Is Mr. Vellipuram entitled to his expenses incurred in respect of the preliminary issues and if so, in what amount?
Result:
- Mr. Vellipuram is entitled to his expenses of the motion assessed in the amount of $1,653.60.
EVIDENCE AND ANALYSIS:
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 Canada1, the expense regulation that applies is the regulation in effect at the time the Application for Arbitration was commenced. On November 14, 2005 (ie., the date the Application for Arbitration was commenced), s.12 of the expense regulation read as follows:
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.
1. Each party's degree of success in the outcome of the proceeding.
The motion concerned State Farm's request for an order permitting it to schedule post-104 week examinations of Mr. Vellipuram and whether I can order Mr. Vellipuram to attend post-104 week examinations. Mr. Vellipuram was completely successful. State Farm was completely unsuccessful.
2. Any written offers to settle made in accordance with subsection (3).
Neither party made any written offer to settle.
3. Whether novel issues are raised in the proceeding.
The issue of whether an arbitrator has jurisdiction to order an insured to attend a medical examination is not novel. It was considered and rejected in previous arbitration decisions.2
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.
Neither party prolonged, obstructed or hindered the progress of the proceeding.
5. Whether any aspect of the proceeding was improper, vexatious or unnecessary.
No aspect of the proceeding was vexatious.
Section 42 of the Schedule permits insurers to schedule examinations to determine if an insured person is or continues to be entitled to a benefit under the Schedule. I found that the application for permission to schedule post-104 week examinations of Mr. Vellipuram was unnecessary since State Farm wanted permission in advance to invoke a process contemplated by the Schedule.
Having regard to these criteria, I order State Farm to pay Mr. Vellipuram his expenses of this motion.
Amount of Expenses:
The amount of expenses and disbursements which I may award are set out in s.3 of the Schedule - Dispute Resolution Expenses 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.
Mr. Wilson was called to the bar in 1972. Mr. Vellipuram claimed a total of 10.4 hours for Mr. Wilson's review of the law, review of the Insurer's motion material, preparation of Mr. Vellipuram's responding motion material, responding to State Farm's request for an adjournment, preparation of a Bill of Costs, drafting 10 letters, and the time spent for the assessment of expense hearing.
Ms. Plytas was called to the bar in 2002. She advised that she spent "no less than 20 hours" preparing State Farm's motion materials.
State Farm submitted that Mr. Wilson's Bill of Costs contained insufficient detail. For example, the Bill of Costs states, in part: "Review of law re insurer's motion", "preparation of responding material on motion". I find that Mr. Wilson's Bill of Costs contains sufficient detail.
Having regard to the criteria set out in Ontario Regulation 664, as well as Ms. Plytas's submission of the sufficiency of detail in the Bill of Costs, I find Mr. Vellipuram's claim for expenses reasonable. I allow Mr. Vellipuram 10.4 hours of Mr. Wilson's time at the maximum hourly rate of $150.00.
Mr. Vellipuram did not claim any disbursements.
The total allowable expenses of the arbitration proceeding are $1,653.60 ($1,560.00 + GST at 6%).
January 23, 2007
Maggy Murray
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 8
FSCO A05-002629
BETWEEN:
CHANDRAKUMARAN VELLIPURAM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE 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:
- State Farm shall pay Mr. Vellipuram $1,653.60 as its expenses of the motion.
January 23, 2007
Maggy Murray
Arbitrator
Date