Narine Persaud v. State Farm Mutual Automobile Insurance Company, 2010 ONFSCDRS 63

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 63

FSCO A07-000237

BETWEEN:

NARINE PERSAUD

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Robert A. Kominar

Heard: February 8, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David Carranza for Mr. Persaud

Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Narine Persaud, was injured in a motor vehicle accident on December 10, 2003. In a decision dated April 6, 2010, I dealt with his claims for statutory accident benefits under the Schedule.¹ I made the following orders, while remaining seized on the issue of expenses:

Mr. Persaud is precluded from arbitrating the issues in this arbitration because he entered into a final settlement with State Farm on August 2, 2006

Issue in this proceeding:

Is State Farm entitled to its expenses incurred in respect of this arbitration hearing?

Result:

State Farm is entitled to its expenses in the amount of $2,366.33

EVIDENCE AND ANALYSIS:

After a preliminary issue hearing to determine whether Mr. Persaud had fully and finally settled his accident benefits claims with State Farm, I determined that he had in fact entered into a binding full and final settlement of all his accident benefit claims and that he therefore was precluded from arbitrating any further accident benefits claims arising out of the accident which occurred on December 10, 2003. As a result of its complete success on the preliminary issue State Farm requests that it be awarded expenses for the hearing.

The Expense Regulation sets out the criteria to be considered when making a decision related to expenses as follows:

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.

In this case, Mr. Persaud was unsuccessful in arguing that he had not settled his claims for accident benefits. There were no written offers to settle to consider. I find that neither party acted in any way to prolong, obstruct or hinder the proceedings. I further find that, despite the failure to persuade me that he had not settled his accident benefits claims, Mr. Persaud’s arguments were not improper, or vexatious. There is some question as to whether they were unnecessary, but I do not find that the claim was so unreasonable as to meet the threshold of being unnecessary.

This leaves the criterion as to whether there were any novel issues raised in the proceeding. Mr. Carranza argued that the Mr. Persaud was simply mistaken in thinking that he was leaving certain benefit categories open when he entered into the settlement with State Farm. Although Mr. Carranza did argue that certain actions and aspects of the documentation gave rise to a prima facie suspicion of mistake having happened, I do not find that the common law contract issues surrounding mistake are particularly novel. There is jurisprudence which Mr. Carranza could have considered in advising his client. Had this happened then I believe that this whole arbitration process may have been avoided.

As a result, I find, on a balance of probabilities, that State Farm is entitled to its reasonable expenses on the preliminary issue hearing.

Mr. Schrieder submitted his bill of costs, including detailed time dockets. I find that his bill is reasonable in claiming a total of 18.8 hours between himself and his colleague, Ms. James, for the whole arbitration process. I further find that the claim for 21.2 hours for support staff time to also be reasonable. The disbursements claimed are negligible.

Therefore, I find that State Farm is entitled to expenses of the arbitration fixed in the amount of $2,366.33, including disbursements and GST. Mr. Persaud shall pay State Farm expenses in this amount.

May 17, 2010

Robert A Kominar Arbitrator

Date