Neutral Citation: 2012 ONFSCDRS 60

FSCO A08-001537

BETWEEN:

MICHAEL VIEIRA Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON EXPENSES

Before: Arbitrator Ashby Heard: Written submissions received on January 27, 2012 Appearances: No one appearing for Mr. Vieira James M. Brown for Aviva Canada Inc.

Issues:

The Applicant, Michael Vieira, was injured in a motor vehicle accident on October 14, 2006. In a decision dated December 2, 2011, I dealt with his claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of expenses:

Mr. Vieira is not entitled to receive a weekly child care benefit.
Mr. Vieira is not entitled to receive an attendant care benefit.
Mr. Vieira is not entitled to receive a housekeeping and home maintenance benefit.
Mr. Vieira is not entitled to payment of an examination expense in respect of a psychological assessment conducted by Provincial Medical Services.
Aviva is not liable to pay a special award.
Mr. Vieira is not entitled to interest for the overdue payment of benefits.

The issue in this further hearing is:

Is Aviva entitled to its expenses incurred in respect of this arbitration hearing? If so, what is the amount of expenses to which Aviva is entitled?

Result:

Aviva is entitled to its expenses fixed at $10,000.00 inclusive of fees, disbursements, and applicable GST and HST.

CHRONOLOGY:

On March 22, 2010, the hearing was adjourned to a date to be set at a resumed pre-hearing on the basis that Mr. Vieira was incarcerated. The arbitrator ordered Mr. Vieira to schedule the resumption within the calendar year.

On April 21, 2011, Aviva’s motion to dismiss the arbitration on the grounds that Mr. Vieira’s claim was frivolous, vexatious and brought in bad faith was denied. The hearing was rescheduled for four days commencing July 18, 2011.

The hearing proceeded on July 18, 19, 20 and 21, 2011.

On December 2, 2011, I issued a decision in which I found that Mr. Vieira was not entitled to the benefits he claimed while reserving on the issue of expenses.

On January 5, 2012, a Notice of Expense Hearing was issued requiring Aviva to submit its materials by January 27, 2012. It further required Mr. Vieira to respond by February 10, 2012.

On January 27, 2012, Aviva’s submissions were received.

Between February 14, 2012 and February 16, 2012 there was an exchange of correspondence between Aviva and KLC Law Firm (“KLC”), Mr. Vieira’s former representative, which was copied to the Commission. Aviva initiated the exchange by asking Mr. Vieira’s representative if he intended to respond to its submissions on expenses. On February 16, 2012, KLC requested that it be removed as representative of record.

In a letter dated February 21, 2012, I ordered a written motion with respect to KLC’s request to be removed as Mr. Vieira’s representative of record. The motion was scheduled to conclude on March 6, 2012. I also ordered KLC to provide a copy of Aviva’s submissions on expenses to Mr. Vieira by courier.

On March 9, 2012, I issued a decision removing KLC Law Firm as Mr. Vieira’s representative of record and concluding the Expense Hearing without further submissions from Mr. Vieira.

Mr. Vieira has not communicated with the Commission since the conclusion of the hearing in July 2011.

REASONS:

Entitlement:

Aviva made submissions with respect to its entitlement to expenses in which it addressed the relevant grounds for entitlement found in Rule 75 of the Dispute Resolution Practice Code as follows:

Degree of Success

As it was successful in defending all aspects of Mr. Vieira’s claim for caregiving, medical, attendant care and housekeeping benefits Aviva met this criteria.

Written Offers to Settle

As the offers of Aviva and Mr. Vieira related to full and final releases they should not be considered. Aviva relied on Tenkorang and Wawanesa Mutual Insurance Company and D.F. and Wawanesa Mutual Insurance Company in which the arbitrators found that offers to settle on a full and final basis do not assist an arbitrator in determining entitlement to specific benefits claimed at arbitration.²

Novel Issues

No novel issues were raised. It was a straightforward case regarding entitlement to caregiver, attendant care and housekeeping benefits and an examination expense.

Conduct that tended to prolong, obstruct or hinder the proceeding

Aviva has expended substantial amounts of preparation time for various aborted proceedings which have resulted in costs thrown away. Mr. Vieira filed for arbitration on July 14, 2008. At the Pre-hearing on March 31, 2009, the hearing was scheduled for four days commencing November 30, 2009. This date was adjourned in part because Mr. Vieira retained a new representative. Subsequently, Mr. Vieira returned to his original representative KLC. The new hearing date was scheduled to commence on March 22, 2010. Mr. Vieira initially sought an adjournment on the basis that his representative had a scheduling conflict. An arbitrator denied the adjournment. On the first day of hearing, it was adjourned on the basis that Mr. Vieira was incarcerated. A condition of the adjournment was Mr. Vieira seek a resumption of the pre-hearing to schedule a hearing date within that “calendar year” being 2010. Mr. Vieira did not comply with this requirement. Aviva brought a motion to dismiss Mr. Vieira’s claim on the basis that it was frivolous, vexatious and brought in bad faith. On April 21, 2011, the motion was dismissed and the hearing was rescheduled for four days commencing July 18, 2011.

Mr. Vieira resiled from an agreement with Aviva that he would not attend on the day that his former wife testified. As a consequence, a ½ day procedural motion was required. As well, Mr. Vieira brought a motion to reopen the case in order that he could rebut his former wife’s testimony which further prolonged the hearing.

The foregoing delays were caused by Mr. Vieira’s conduct and are factors to be considered in finding that Aviva is entitled to its expenses.

Improper, vexatious or unnecessary aspect of the proceeding and Participation in Examinations

Improper or vexatious conduct or unnecessary proceedings were not factors in its entitlement to expenses with the exception of the delays and conduct referred to above.

I agree with most of Aviva’s submissions relating to its entitlement to expenses. I find that Aviva is entitled to its expenses as it was completely successful in its defence of Mr. Vieira’s claims. I agree that: the offers did not assist me in determining entitlement; there were no novel issues and Mr. Vieira’s conduct tended to hinder and prolong the proceedings.

Quantum of Expenses:

Aviva seeks $23,976.78 in fees and disbursements inclusive of applicable GST/HST as set out in its updated Bill of Costs found at Tab 3 of its Submissions and relies on the provisions of the Expense Regulation.

Aviva submits that notwithstanding the matters were not complex it should be compensated for the procedural delays and the duplicative preparation time necessitated by Mr. Vieira’s conduct. Therefore expenses should be assessed at the higher ratio of 4 preparation days to 1 day of hearing.

I disagree. I find that the reasonable ratio would be closer to 2:1 given the issues and the delays. As well, Aviva was unsuccessful in its motion to have the arbitration dismissed. Therefore, I fix the expenses which Mr. Vieira shall pay to Aviva at $10,000.00 inclusive of fees, disbursements, and applicable GST and HST.

April 16, 2012

Denise Ashby Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Michael Vieira shall pay to Aviva Canada Inc. the amount of $10,000 in total expenses, inclusive of fees, disbursements, and applicable GST and HST.