Maria Edward v. TD Home and Auto Insurance Company, 2011 ONFSCDRS 15

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 15

FSCO A07-000293

BETWEEN:

MARIA EDWARD

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: William J. Renahan

Heard: Written submissions received by February 17, 2009

Appearances: David Wilson for Mrs. Edward

Pamela A. Brownlee for TD Home and Auto Insurance Company

Issues:

The Applicant, Maria Edward, was injured in a motor vehicle accident on April 30, 2001. In a decision dated October 29, 2008, I dealt with her claims for statutory accident benefits under the Schedule.¹ I dismissed the Application for Arbitration and reserved my decision 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?

Result:

TD Home and Auto Insurance Company is entitled to its expenses of the arbitration hearing.

EVIDENCE AND ANALYSIS:

Through inadvertence, Mr. Wilson did not make written submissions on the issue of entitlement until February 17, 2009. Ms. Brownlee’s submissions did not come to my attention until she reminded me by letter dated December 9, 2010.

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. The six criteria are.

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.

The Insurer was entirely successful in defending a claim for proposed chiropractic treatment in the amount of $1,154.72. The hearing took three days. Mr. Wilson submitted that the lack of any written offer by the Insurer should militate against an order for costs in its favour in view of the resources used to resolve this claim.

In my decision, I quoted Dr. Brian Kirsch, a specialist in pain medicine and psychiatry, who assessed Ms. Edward and wrote a report for the Insurer. He described the Applicant’s psychological makeup and why physical illness was a society-sanctioned reason for disability for individuals such as the Applicant who could not cope because of other stressors in their life. I agreed with his conclusion that the disabled lifestyle she had chosen ensured that she would be taken care of without her taking responsibility for her life.

I disagree with Mr. Wilson’s submission that the Insurer should have offered to settle this small case for three reasons. First, the Insurer had a very good defence. Second, paying to treat physical injuries which had healed would not help Ms. Edward. Paying would have the opposite effect. It would provide further support to Ms. Edward that her choice of a disabled lifestyle due to physical injuries was acceptable. Third, the decision may affect further claims by Ms. Edward for chiropractic treatment.

Having regard to all the criteria, the Insurer is entitled to its expenses. Mrs. Brownlee has made written submissions on the amount of expenses. I have forwarded these submissions to Ms. Edward with this decision. Ms. Edward has ten days to make written submissions on the issue of the amount of expenses.

February 8, 2011

William J. Renahan

Arbitrator

Date