Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 183

FSCO A04-001076

BETWEEN:

MR. M

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

Before: William J. Renahan

Heard: Written submissions received by August 22, 2008

Appearances: Tally Vanounou for Mr. M Ian Kirby for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. M, was injured in a motor vehicle accident on August 5, 2003. In a decision dated July 28, 2008, I dealt with his claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of expenses:

Wawanesa Mutual Insurance Company shall pay Mr. M $7,028.58 together with interest calculated according to section 46 of the Schedule.
The issues of entitlement to an amount of expenses of the arbitration proceeding are deferred pending written submissions.

The issue in this further hearing is:

Is either party entitled to expenses incurred in respect of this arbitration hearing?

Result:

Each party shall bear its own expenses of the arbitration proceeding.

EVIDENCE AND ANALYSIS:

The criteria for determining entitlement to and amount of expenses of the arbitration proceeding are set out in section 12 of Ontario Regulation 664, R.R.O. 1990, made under the Insurance Act.

I consider those criteria in order:

Each party's degree of success in the outcome of the proceeding.

Wawanesa succeeded in defending Mr. M’s claims for weekly income replacement benefits, $400 in medications and approximately $7,000 in examinations claimed under section 24 of the Schedule. Mr. M succeeded in recovering $7,028.58 for medical benefits, together with interest. The fact that I found the medical treatment was not reasonable or necessary but that Mr. M was entitled to payment because Wawanesa failed to comply with time provisions for giving notice set out in section 38 of the Schedule is irrelevant.

Overall, Mr. M succeeded because he recovered $7,028.58 which he would not have received had he not pursued this arbitration. However, the criterion does not require me to consider who won and who lost. The criterion requires me to consider “each party’s degree of success.” In this case, success was mixed because Wawanesa succeeded in defending the larger part of the claims.

Any written offers to settle made in accordance with subsection (3).

Each party made offers to settle, but neither party did better than their offer. I place little weight on this criterion in this case.

Whether novel issues are raised in the proceeding.

Novel issues were not raised.

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.

The first hearing started on July 11, 2005. Mr. M discharged his counsel. Over the objection of Wawanesa, Arbitrator Alves adjourned the hearing so that Mr. M could retain new counsel. She left the issue of expenses thrown away by Wawanesa in preparation for this hearing in the discretion of the hearing arbitrator.

Mr. M commenced the resumed hearing on September 19, 2005 without counsel. Arbitrator Miller reported that the parties had settled the case and the hearing was cancelled.

Several months later, Mr. M advised Wawanesa that he had not signed the settlement documents and that he was not willing to settle on the terms previously negotiated.

Wawanesa brought a motion for an order that the settlement was binding. At the motion in April 2006, Wawanesa did not argue that the parties had reached a settlement. Instead, it asked Arbitrator Feldman to dismiss the arbitration on the grounds that it was frivolous. Arbitrator Feldman refused to dismiss the arbitration and left expenses of this motion to the discretion of the hearing arbitrator.

By discharging his lawyer at the commencement of the hearing in July 2005, Mr. M prolonged the procedure. Normally Wawanesa would be entitled to some of the unnecessary expenses it incurred for preparing and attending at this hearing.

By not pursuing its claim at the motion to determine whether the parties had reached a binding settlement, Wawanesa prolonged the procedure. With respect to Wawanesa’s request for an order dismissing the application for arbitration, Arbitrator Feldman wrote that based upon the evidence filed by the parties, the Insurer had failed to prove that the conduct of the Applicant merited a dismissal of his application. I cannot see any merit to Wawanesa’s application, and find that its motion unnecessarily prolonged the proceedings.

Whether any aspect of the proceeding was improper, vexatious or unnecessary.

I have dealt with this criterion under criterion 4.

Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation.

This criterion does not apply.

Having regard to all the criteria, I find that each party shall bear its own expenses of the arbitration proceeding.

November 13, 2008

William J. Renahan Arbitrator

Date