Tello-Medina v. State Farm Mutual Automobile Insurance Company, 2010 ONFSCDRS 127

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 127

FSCO A09-000033

BETWEEN:

ZULLY TELLO-MEDINA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: William J. Renahan

Heard: Written submissions received by September 1, 2010.

Appearances: Miriam Yosowich, student-at-law for Ms. Tello-Medina

Darrell March and Jennifer A. Reid for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Zully Tello-Medina, was injured in a motor vehicle accident on July 31, 2006. In a decision dated April 19, 2010, I dealt with her claims for statutory accident benefits under the Schedule¹ in a two-day hearing in February 2010. I dismissed her claim for $2,261.56 for treatment provided by Finch-Weston Rehabilitation Clinic and reserved on the issue of expenses.

The issue in this further hearing is:

Is either party entitled to expenses incurred in respect of this arbitration hearing, and, if so, how much?

Result:

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

EVIDENCE AND ANALYSIS:

The criteria I should consider in determining entitlement to expenses of the arbitration proceeding are set out in section 12 of Ontario Regulation 664, R.R.O. 1990, as amended at the time the Application for Arbitration was filed. I consider each of the six criteria in order.

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

The Insurer was completely successful.

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

The Applicant made a written offer to settle medical benefits at Finch-Weston Rehabilitation Clinic for $3,000 plus $500 interest. The issue in dispute was treatment provided by Finch-Weston in the amount of $2,261.56. The Applicant’s offer does not address the issue in dispute because it exceeded the amount in dispute in this arbitration. Further, the offer does not comply with Rule 76 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) as it does not stipulate the period during which it remained open for acceptance. Lastly, the Applicant did not do better than the offer.

Whether novel issues are raised in the proceeding.

No novel issues were 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.

This criterion is included in the discussion of criterion number 5.

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

In January 2009, Arbitrator Lee dealt with some of the Applicant’s accident benefit claims arising out of this accident. I relate the chronology of events in order to determine whether this second hearing before me was necessary.

On October 16, 2008, the Applicant applied for mediation with respect to the Finch-Weston account in issue in this arbitration. On December 1 and 29, 2008 that issue was mediated at the Commission. The hearing before Arbitrator Lee was conducted on January 5, 6, 7 and 8, 2009. The issues in that hearing were entitlement to weekly caregiver and housekeeping expenses and $212.28 for a medical account of Mackenzie Rehabilitation Company. On January 8, 2009, the Applicant filed with the Commission her Application for Arbitration with respect to the Finch-Weston services under two treatment plans. On March 3, 2009, Finch-Weston completed a third treatment plan and rendered services under that plan.

The law firm that represented the Applicant was the same for the hearing before Arbitrator Lee and this hearing, and Mr. March represented the Insurer in both hearings. At this hearing, counsel introduced the same six volumes of documentary evidence that were used at the earlier hearing, as well as what they called “Supplementary” briefs.

Prior to the amendments to the Insurance Act² on November 1, 1996, applicants generally had control over raising the issues for determination at arbitration. Subsection 282 (3) was amended on November 1, 1996 to allow insurers to raise issues at the arbitration. In Nand and State Farm Mutual Automobile Insurance Company³, Arbitrator Baltman wrote that the public policy goal underlying the new provision was to encourage speedy and effective dispute resolution.

Neither counsel could provide me with any information as to why the claim for the Finch-Weston services was not before Arbitrator Lee in the first hearing.

At this hearing, counsel for the Applicant raised additional treatment rendered under a third treatment plan completed by Finch-Weston as an issue in this hearing. Mr. March objected to me hearing this issue because he was not aware that this would be an issue at the hearing and he was not prepared to address the additional treatment.

I find that that either party could have raised the issue of the services of Finch-Weston at the first hearing where the Arbitrator could have conveniently dealt with the issue in a quicker and more efficient manner than me dealing with it separately. Further, having heard the testimony and having read the documents, I do not understand why I could not have dealt with treatment rendered under the third Finch-Weston treatment plan.

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 is not applicable.

CONCLUSION:

I find that either party could have raised the issue of the services of Finch-Weston under the first two treatment plans at the first hearing. I also find that I could have conveniently dealt with services rendered under the third treatment plan at the hearing I conducted. I find that both parties used this process to frustrate the other. Having regard to all the criteria, I find that each party shall bear their own expenses of this arbitration proceeding.

November 1, 2010

William J. Renahan

Arbitrator

Date