Neutral Citation: 2007 ONFSCDRS 99

FSCO A04-001395

BETWEEN:

TERESA RITORTO

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON EXPENSES

Before: Fred Sampliner

Heard: October 27, 2006, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Bhim Goordial for Mrs. Ritorto

John D. Dean for Allstate Insurance Company of Canada

Issues:

On March 3, 2006, I issued a decision about Mrs. Teresa Ritorto's claims for statutory accident benefits under the Schedule¹ arising out of a October 20, 2003 motor vehicle accident. The parties disagree about their claims for expenses of this arbitration.

The issue in this further hearing is:

Is either party entitled to their expenses of this arbitration under subsection 282(10) of the Insurance Act? If so, what is the amount?

Result:

Neither party is entitled to their expenses of this arbitration under subsection 282(10) of the Insurance Act.

EVIDENCE AND ANALYSIS:

The parties agree that their respective degree of success in this proceeding is the first relevant factor to consider under Rule 75 of the Dispute Resolution Practice Code.² Allstate's $5,000 settlement offer is a second factor, and a third is the novelty of Mrs. Ritorto's claim for payment of the dynamic motion imaging (DMX).

Allstate contends that Mrs. Ritorto was not successful and the hearing was unnecessary. As a result, Allstate argues that Mrs. Ritorto should not be entitled to her expenses and Allstate should be awarded its own.

I disagree and find that both parties achieved partial success. On the one hand, Mrs. Ritorto recovered approximately forty per cent of her claimed caregiver benefits and the in-home assessment, one third of her housekeeping claim, and sixty per cent of her treatment claim. On the other hand, Allstate gained a full dismissal of Mrs. Ritorto's claim for payment of the DMX, which the parties agree was the driving force in this proceeding.

Allstate's position does not recognize the novelty and importance of DMX issue that motivated both parties to seek a decision in this matter. This factor weighs in Mrs. Ritorto's favour in the otherwise equal comparison of the settlement offer versus recovery.

FSCO's expense criteria do not mimic the Court system.³ FSCO case law specifically recognizes that novel issues merit bringing those matters to a decision. In the balance, Mrs. Ritorto should not have to pay Allstate's expenses because she failed on the central motivating issue in this proceeding, nor should she recover her expenses because her partial recovery approximated the settlement offer. I find that Mrs. Ritorto and Allstate should each bear their own expenses.

May 18, 2007

Fred Sampliner Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario