Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2010 ONFSCDRS 149
Appeal P08-00029
OFFICE OF THE DIRECTOR OF ARBITRATIONS
MAKVALA OMARASHVILI Appellant
and
ECHELON GENERAL INSURANCE COMPANY Respondent
BEFORE: David Evans
REPRESENTATIVES: Andrew Suboch for Mrs. Omarashvili Jason H. Goodman for Echelon
HEARING DATE: November 5, 2010 by teleconference
APPEAL EXPENSES ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Echelon General Insurance Company is entitled to its legal fees and disbursements of this appeal proceeding fixed in the amount of $1,894.92, inclusive of GST.
December 23, 2010
David Evans Director’s Delegate Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
In a decision dated November 18, 2009, I dismissed Mrs. Omarashvili’s appeal of the arbitrator’s decision dated July 4, 2008. Echelon General Insurance Company now seeks its expenses of responding to the appeal.
II. BACKGROUND
Mrs. Makvala Omarashvili appealed the arbitrator’s preliminary issue finding that she was “not injured in an accident” pursuant to s. 2 of the SABS–1996.1
The issue on appeal was whether the Arbitrator went beyond simply determining whether or not the Insured was involved in an accident but rather “assessed the evidence and concluded the Insured was not injured which is a radically different question.” I found this was not so and dismissed the appeal.
III. ANALYSIS
Pursuant to s. 282(11) of the Insurance Act, an arbitrator “may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.” Subsection 283(7) of the Act provides that ss. 282 (10) to (11.2) apply with necessary modifications to appeals. Subsection 12(2) of Ontario Regulation 664, R.R.O. 1990, as amended, in turn provides that an arbitrator or delegate shall consider only the criteria set out therein for “the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding.”
Echelon relies on criterion 1 of s. 12(2): “Each party’s degree of success in the outcome of the proceeding.” It also relies on criterion 5: “Whether any aspect of the proceeding was improper, vexatious or unnecessary.”
Mrs. Omarashvili submits that the proceeding was not improper, vexatious or unnecessary, and that I have the discretion to award no costs despite Allstate’s success.
Regarding criterion 1, Echelon was entirely successful. As for criterion 5, while I rejected Mrs. Omarashvili’s submission, it did not rise to the level of being improper, vexatious or unnecessary. Nonetheless, the proceeding was unlikely to have much chance of success. Even if I had the discretion to award no costs, this would not be an appropriate case to do so because of the nature of the claim, namely the finding that she was not in an accident. Accordingly, Echelon is entitled to its legal fees and disbursements of this appeal proceeding.
With respect to the amount of the legal fees and disbursements, Mrs. Omarashvili had no dispute with the preparation time or the disbursements, nor do I.
Mr. Goodman included the drafting of the costs outline in the total claim for expenses, and since the expense hearing only lasted five minutes, no further expenses for this expense hearing were claimed or are required.
Accordingly, I find that Echelon is entitled to its submitted legal fees and disbursements of this appeal proceeding fixed in the amount of $1,894.92, inclusive of GST.
December 23, 2010
David Evans Director’s Delegate Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.