Mrs. S v. Economical Mutual Insurance Company, 2010 ONFSCDRS 70

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 70

FSCO A08-001275

BETWEEN:

Mrs. S

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: William J. Renahan

Heard: By written submissions

Appearances: Michael Rubin for Mrs. S

Nicholaus de Koning for Economical Mutual Insurance Company

Issues:

The Applicant, Mrs. S, was injured in a motor vehicle accident on November 22, 2006. In a decision dated February 12, 2010, I dealt with her claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of expenses:

Mrs. S is not entitled to income replacement benefits.
Mrs. S is not entitled to housekeeping expenses.
Mrs. S is not entitled to a special award.
The issue of expenses of the arbitration proceeding is deferred.

The issue in this further hearing is:

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

Result:

Economical is entitled to expenses of the arbitration proceeding, the amount to be agreed upon or assessed.

EVIDENCE AND ANALYSIS:

The criteria I should consider in determining entitlement to expenses of the arbitration proceeding are set out in subsection 12(2) 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).

No written offers to settle were made in accordance with subsection 12(3) of the Regulation.

Whether novel issues are raised in the proceeding.

The only novel issue was raised by the Applicant and concerned the interpretation of section 64.1 of the Schedule. Section 64.1 provides that a person’s income shall be determined without reference to any income the person is required to report under the Income Tax Act and has failed to report. The issue was moot. I found that Mrs. S did not work. She had no obligation to file a tax return for income she did not earn. Section 64.1 had no application.

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 not applicable.

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

I found that Mrs. S made up the story of her employment. However, I also found that Mrs. S’s intellect was so low that she did not recognize that her story made no sense. I do not know what lead her to pursue a claim which had no merit. “Improper and vexatious” connotes an improper intent. I do not have evidence to find that Mrs. S’s intent was improper. However, the proceeding had no merit and was 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.

This criterion is not applicable.

Having regard to all the criteria, I find that Mrs. S should pay Economical’s expenses of the arbitration proceeding.

If the parties cannot agree on the amount of expenses, they should comply with Rule 79.2 of the Dispute Resolution Practice Code (Fourth Edition).

May 31, 2010

William J. Renahan

Arbitrator

Date