Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2008 ONFSCDRS 24
Appeal P06-00041
OFFICE OF THE DIRECTOR OF ARBITRATIONS
GARY MCLELLAN
Appellant
and
AVIVA CANADA INC.
Respondent
BEFORE:
David R. Draper
REPRESENTATIVES:
Gary McLellan, representing himself
James M. Brown for Aviva
HEARING DATE:
By written submissions
APPEAL EXPENSES ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. McLellan shall pay appeal expenses to Aviva Canada Inc., fixed at $3,037.33.
February 22, 2008
David R. Draper Director of Arbitrations
Date
REASONS FOR DECISION
BACKGROUND AND ANALYSIS
This dispute involved the calculation of Mr. McLellan’s income replacement benefits (“IRBs”) under the SABS–1996.1 In a decision dated October 31, 2006, Arbitrator Blackman determined that Mr. McLellan was entitled to an additional amount for IRBs, plus interest ─ a total of approximately $15,000.2
Mr. McLellan appealed, claiming the arbitrator erred in determining his income from self-employment and his accident-related business expenses. In a decision dated October 4, 2007, Director’s Delegate Makepeace dismissed the appeal, stating that it “had little merit.”
Because Director’s Delegate Makepeace is not available to determine the issue of appeal expenses, the matter is before me.
Aviva seeks its appeal expenses. Mr. McLellan’s position is less clear. In response to my request that the parties file any claim for appeal expenses, including submissions, Mr. McLellan wrote, stating as follows:
Thank you for your letter of response dated December 18, 2007. Due to the breach of the Superior Court Filing I will go on to the next step. Here is a copy of Unpaid expenses that was over looked by arbitration I am looking forward to meet you in person and to your questioning.
This copy of unpaid expenses will be forwarded to Pilot Insurance for payment.
In his summary of expenses, Mr. McLellan includes “personal expenses” ($51,580.78), “unpaid business expense” ($322,102.00), and “unpaid legal fees and disbursements expenses” ($36,646.40).
The criteria for awarding expenses are found in subsection 12(2) of R.R.O 1990, Reg. 664, made under the Insurance Act:
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.
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.
Aviva was entirely successful in this appeal. As well, Aviva has provided a copy of a letter to Mr. McLellan, dated December 6, 2006, making an early offer to settle the matter before going to the expense of responding to his appeal. Aviva agreed to consent to the withdrawal of the appeal on a without-costs basis, leaving the offer open until 5:00 p.m. on December 14, 2006.
In my opinion, Aviva clearly should receive its appeal expenses. Even without the settlement offer, I would have reached the same conclusion based on Aviva’s complete success in the appeal.
Aviva served and filed a Bill of Costs for $3,037.33, reflecting 25.4 hours spent by its lawyer, calculated at legal aid rates, and $151.41 for miscellaneous disbursements, inclusive of GST. Mr. McLellan did not specifically object to any of these amounts and, in any event, I find them reasonable.
Therefore, Mr. McLellan is required to pay appeal expenses to Aviva in the amount of $3,037.33.
February 22, 2008
David R. Draper Director of Arbitrations
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- In a subsequent decision dated February 12, 2007, Arbitrator Blackman ordered Aviva to pay Mr. McLellan’s arbitration expenses, fixed at $2,825.55, inclusive of GST.