D. F. v. Wawanesa Mutual Insurance Company, 2008 ONFSCDRS 158

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 158

Appeal P06-00029

OFFICE OF THE DIRECTOR OF ARBITRATIONS

D. F. Appellant

and

WAWANESA MUTUAL INSURANCE COMPANY Respondent

BEFORE: David Evans

REPRESENTATIVES: D. F., unrepresented Ian D. Kirby for Wawanesa

HEARING: By written submissions

APPEAL ORDER – EXPENSES

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. F shall pay Wawanesa Mutual Insurance Company’s appeal expenses of $2,165.36, inclusive of GST.

September 26, 2008

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

In a decision dated April 15, 2008, I upheld the arbitrator’s order dated August 23, 2006, dismissing her claims under the SABS–1996¹ for income replacement benefits (IRBs) and medical-rehabilitation benefits and for a special award. I also upheld the arbitrator’s expenses order dated December 22, 2006, awarding Wawanesa expenses of $15,344.05. Wawanesa now seeks its expenses of the appeal in the amount of $2,665.36.

II. ANALYSIS

At the end of my appeal decision, I wrote that, although I had originally planned to have the parties make submissions on appeal expenses at the appeal hearing, I deferred that once it became clear that Ms. F’s submissions were going to take up most of the day. I noted that, in light of Ms. F’s failure to succeed on her appeal, it was highly unlikely that she would receive her expenses. Accordingly, I held that any expense hearing would deal only with whether and to what extent Wawanesa should receive its expenses.

The criteria for awarding expenses are found in the expense regulation, the Schedule to Regulation 664, R.R.O. 1990, made under s. 282(11) of the Insurance Act, and repeated in Section F of the Dispute Resolution Practice Code. Criterion 1, each party’s degree of success in the outcome of the proceeding, is the most relevant. Ms. F’s appeal was dismissed in its entirety. This was also an appeal of essentially factual issues, so there were no novel issues (criterion 3). As for access to justice, it has long been accepted that concerns about it are different in appeals because there has already been a full hearing on the merits.² Accordingly, I find that Wawanesa is entitled to its expenses of the appeal hearing.

As to the amount claimed, Ms. F submits that counsel for Wawanesa, Mr. Kirby, did not provide computerized dockets. This is in reference to Rule 79.2(c) of the Code. However, Mr. Kirby advised that his dockets are handwritten and that he had transcribed them into the insurer’s Bill of Expenses on Appeal. I see no reason to doubt his statement.

In any event, as stated in Henri and Allstate Insurance Company of Canada, (OIC A‑007954, August 8, 1997), the overriding consideration in fixing arbitration expenses is reasonableness. Mr. Kirby claims 7.5 hours out of the 21.9 hours for the hearing itself, most of which consisted of Ms. F providing her submissions. The remaining 13.4 hours claimed as preparation for an appeal is reasonable, as is the $42 claim for disbursements. However, Mr. Kirby is also claiming Wawanesa’s appeal filing fees under s. 2 of the expense regulation. This provides for recovery of the filing fees “paid by the insured person or the insurer when appealing the order of an arbitrator….” Ms. F paid the filing fee to appeal the arbitrator’s order, not Wawanesa. Furthermore, Wawanesa’s assessment for appeals under s. 4 of O.R. 11/01 (Assessment of Expenses and Expenditures) made under the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28, which it paid as a party to the appeal, is not recoverable in this case.³ That claim is therefore denied.

Ms. F shall pay Wawanesa’s appeal expenses of $2,165.36.

September 26, 2008

David Evans Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Stephenson and Economical Mutual Insurance Company, (FSCO P07-00001, April 22, 2008).
3. 3Section 7 of the Schedule to the expense regulation only applies if on or after March 1, 2006 the insured failed to comply in certain ways with s. 42 of the SABS­–1996. See Tharmaratnam and CAA Insurance Company (Ontario), (FSCO A05–000094, March 1, 2007).