Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 34
FSCO A09-000279
BETWEEN:
NAM THI NGUYEN
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before: Judith Killoran
Heard: January 6, 2012, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: Ms. Nguyen did not appear and no one represented her
Petros Yannakis for TD Home and Auto Insurance Company
Issues:
The Applicant, Nam Thi Nguyen, was involved in a motor vehicle accident on December 3, 2005. In a decision dated September 12, 2011, 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:
Ms. Nguyen is not entitled to receive a weekly income replacement benefit of $295.50 weekly from July 22, 2006 and ongoing.
Ms. Nguyen is not entitled to $100 weekly for housekeeping and home maintenance services from July 7, 2006 to December 3, 2007.
Ms. Nguyen is not entitled to interest as there is no overdue payment of benefits.
Ms. Nguyen is not entitled to a special award as TD Home did not unreasonably withhold or delay the payment of benefits.
The issue in this further hearing is:
- Is TD Home entitled to its expenses incurred in respect of this arbitration hearing? If so, what is the amount of expenses to which TD Home is entitled?
Result:
- TD Home is entitled to its expenses of the arbitration hearing. Ms. Nguyen shall pay to TD Home the amount of $14,000 in expenses, inclusive of fees, disbursements, and HST.
EVIDENCE AND ANALYSIS:
On January 6, 2012 at 10:30 a.m., I conducted an expense hearing in this matter. Mr. Petros Yannakis appeared on behalf of TD Home. Ms. Nguyen did not appear and no one appeared on her behalf, although we waited for 30 minutes for her to appear. I am satisfied that Ms. Nguyen received notice of the expense hearing and the consequences of non-attendance as required under Rule 37 of the Dispute Resolution Practice Code.
On October 12, 2011, Ms. Nguyen’s then counsel, Ms. Tanner, filed a motion to be removed as solicitor of record from this case. TD Home did not oppose her motion to be removed from the record. On October 19, 2011, Ms. Tanner made submissions to me, by teleconference, in support of her motion. She complied with the requirements of Rule 9.7 of the Dispute Resolution Practice Code, which sets out the procedure to be followed to remove oneself from the record. Ms. Tanner asked to be removed from the record on the basis that there had been a breakdown of the lawyer and client relationship and Ms. Nguyen had failed to provide proper instructions. Ms. Nguyen was given written notice of the motion and advised by Ms. Tanner’s office about the process. In my written decision dated October 31, 2011, removing Ms. Tanner from the record, I encouraged Ms. Nguyen to obtain representation for the expense hearing which was scheduled for 10:00 a.m. on January 6, 2012.
Mr. Yannakis made submissions with respect to the question of TD Home’s entitlement to expenses. He addressed the relevant grounds for entitlement found in Rule 75 of the Dispute Resolution Practice Code, as follows:
- Degree of Success
TD Home was successful in all aspects of defending Ms. Nguyen’s claim for income replacement and housekeeping benefits.
- Written Offers to Settle
There were 3 written offers to settle from TD Home, presented in compliance with Rule 76 of the Dispute Resolution Practice Code. After mediation, the November 21, 2008 settlement offer of $25,000 was rejected by Ms. Nguyen, as she was not prepared to accept $5,200 in partial settlement of her housekeeping claim.
On January 18, 2010, a 4-day hearing was scheduled to begin. On January 13, 2010, TD Home offered $13,500 to settle the issues in dispute and $3,500 for expenses, either agreed or assessed. Ms. Nguyen rejected the offer. TD Home then settled the medical/rehabilitation claims by paying $11,000 directly to the clinics with outstanding accounts. At the hearing, TD Home offered $7,000 to Ms. Nguyen which was accepted by her. However, almost immediately after, Ms. Nguyen rejected the settlement.
New hearing dates were scheduled for May 30, 31, June 1 and June 2, 2011. On May 19, 2011, TD Home offered $3,000 for a full and final settlement of Ms. Nguyen’s claims. On May 25, 2011, TD Home offered $2,000 for a full and final settlement of Ms. Nguyen’s claims, an offer which was to remain open until the outset of the hearing.
No written offer was received from Ms. Nguyen which complied with Rule 76 of the Code. There was one written offer of $12,500 which was not clear about the timeline for which it was open.
TD Home originally had a claim for repayment of $7,000 of income replacement benefits. At the outset of the hearing, it was waived as an issue for my consideration.
- Whether novel issues were raised in the hearing
No novel issues were raised. It was a straightforward case regarding entitlement to income replacement and housekeeping benefits.
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, vexations or unnecessary
It was the party and not the party’s representative who prolonged the proceeding. On January 18, 2010, Ms. Nguyen did not attend the hearing. As a result, $400 in costs were awarded against her. On the second day of hearing, Ms. Nguyen appeared and accepted $7,000 in settlement. Soon after the hearing was cancelled, Ms. Nguyen reneged on the settlement. She then retained new counsel and a new pre-hearing needed to be scheduled.
In the fall, Ms. Nguyen did not make herself available for the resumption of the pre-hearing which was scheduled for participation by teleconference.
TD Home submits that it has expended