Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 91
FSCO A01-000175 and A06-000029
BETWEEN:
EDDIE SHUNG
Applicant
and
ING INSURANCE COMPANY OF CANADA (Formerly Allianz Insurance Company of Canada)
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Judith Killoran
Heard:
April 20, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Carolyn Amendola for Mr. Shung
Chris T. J. Blom for ING Insurance Company of Canada
Issues:
The Applicant, Eddie Shung, was injured in a motor vehicle accident on April 4, 1997. He applied for and received statutory accident benefits from Allianz Insurance Company of Canada ("Allianz"), now ING Insurance Company of Canada (ING), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Shung applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Is Mr. Shung entitled to his expenses of the settlement discussion scheduled for April 20, 2007?
Result:
- ING shall pay $1,113 forthwith to Mr. Shung for his expenses of the settlement discussion.
EVIDENCE AND ANALYSIS:
On June 25, 2001, a pre-hearing discussion in this case was held by me. The pre-hearing letter dated June 27, 2001, outlines the issues which were identified and agreed to by the parties. On January 8, 2002, a preliminary issue decision was issued with respect to this case.
On May 2, 2006, I conducted a resumption of pre-hearing discussion at the Financial Services Commission. Ms. Amendola represented Mr. Shung. Mr. McCorriston represented ING. The parties agreed to participate in a settlement discussion with me from 10:00 a.m. until 5:00 p.m., on August 22, 2006. They further agreed that if the settlement discussion were unsuccessful, a hearing would be conducted on July 9, 10, 11, 12 and 13, 2007, at the Financial Services Commission.
The settlement discussion set for August 22, 2006, was adjourned due to my unavailability.
A pre-hearing discussion was held on August 29, 2006, before another arbitrator to add further issues, which were identified and agreed to by the parties, to the arbitration scheduled to begin on July 9, 2007. The pre-hearing letter dated August 29, 2006 stated the following:
The parties agreed to participate in a settlement discussion with Arbitrator Killoran prior to the hearing. The parties were not available for the six Friday dates I suggested, October 13 and 20, November 10 and 17 and December 1 and 8, 2006. They may contact the case worker to arrange the date for a settlement discussion.
If the parties are not able to resolve the issues, they may consider ways of shortening the hearing. They may consider proceeding on the preliminary issue of whether Mr. Shung's impairment was caused by the motor vehicle accident. They may also consider the need for further hearing dates. They may deal with these issues with Arbitrator Killoran.
On September 29, 2006, Mr. McCorriston informed the Financial Services Commission that he was no longer counsel of record for ING. On October 25, 2006, Mr. Chris Blom informed the Commission that he had been retained by ING to represent them in this matter. The Commission canvassed both parties for a date on which to conduct the settlement discussion referred to in the pre-hearing letter dated August 29, 2006.
On April 20, 2007, I convened the long awaited settlement discussion. I was informed by ING that it was not interested in discussing settlement but wished to deal with outstanding production requests.
Mr. Shung objected on the grounds that the proceeding was scheduled and characterized as a settlement discussion. I agreed that the proceeding had been scheduled as a settlement discussion. Further, I was not prepared to transform the proceeding into a motion for productions when no notice had been given and no motion materials were filed.
Mr. Shung asked that he be awarded his costs thrown away. Ms. Amendola asked for $2,000 in expenses. She submitted that she had spent 6 hours in preparation and 1 hour in attendance. Mr. Blom argued that expenses should be restricted to $500. As Ms. Amendola is experienced counsel, I find that she is entitled to $150 an hour under the Dispute Resolution Practice Code. Therefore, I find that compensation for 7 billable hours on Ms. Amendola's part entitles Mr. Shung to payment of $1,050 plus GST for legal expenses.
Consequently, ING shall pay $1,113 forthwith to Mr. Shung for his expenses of the settlement discussion.
May 8, 2007
Judith Killoran
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 91
FSCO A01-000175 and A06-000029
BETWEEN:
EDDIE SHUNG
Applicant
and
ING INSURANCE COMPANY OF CANADA (Formerly Allianz Insurance Company of Canada)
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- ING shall pay $1,113 forthwith to Mr. Shung for his expenses of the settlement discussion.
May 8, 2007
Judith Killoran
Arbitrator
Date