D.F. v. Wawanesa Mutual Insurance Company, 2012 ONFSCDRS 61

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 61

Appeal P08-00024

OFFICE OF THE DIRECTOR OF ARBITRATIONS

D.F.

Appellant

and

WAWANESA MUTUAL INSURANCE COMPANY

Respondent

BEFORE:

David Evans

REPRESENTATIVES:

D.F. representing herself

Ian D. Kirby for Wawanesa Mutual Insurance Company

HEARING:

On the record

APPEAL ORDER – EXPENSES

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. D.F. shall pay Wawanesa Mutual Insurance Company’s appeal expenses of $2,100.95, inclusive of HST.

April 17, 2012

David Evans

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

In a decision dated December 15, 2011, I upheld arbitration orders dated August 13, 2007, June 20, 2008, and August 15, 2008, that had dismissed D.F.’s claims for accident benefits under the SABS‑1996¹ and awarded Wawanesa arbitration expenses of $9,457.84. Wawanesa now seeks its appeal expenses in the amount of $2,100.95.

II. ANALYSIS

At the end of my appeal decision, I wrote that

Although normally at the end of an appeal decision I ask for submissions on entitlement to and the quantum of expenses, I can see no possibility of D.F. being found entitled to her appeal expenses, in light of the criteria.² Criterion 1 is each party’s degree of success in the outcome of the proceeding. D.F. was entirely unsuccessful and Wawanesa was entirely successful. Regarding any issues about access to justice, to whatever extent that is still a factor, as was stated in Stephenson and Economical Mutual Insurance Company, (FSCO P07-00001, April 22, 2008), when it comes to appeal expenses, “it has long been accepted that concerns about access to justice are different because there already has been a full hearing on the merits.” Although D.F. raised many issues, the matter essentially related to findings of fact, so no novel issues were raised in the proceeding (criterion 3). Criterion 4 is 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. I set out in some detail the delays it took to get from the initial filing of the notice of appeal to the hearing. Furthermore, D.F. failed to comply with my orders, including sending submissions after the hearing, when I had already ordered that no further submissions would be allowed. That is why I say it is impossible for D.F. to be found entitled to her appeal expenses.

I concluded that only Wawanesa’s entitlement to and amount of expenses would be dealt with.

This decision is on the record. Wawanesa sought its appeal expenses and filed its Bill of Expenses. I provided D.F. until February 17, 2012 to file her written response. None arrived, so I set a deadline that if by March 30, 2012 I had heard nothing further (which is the case), expenses would be decided on the record.

For the reasons set out above, Wawanesa is entitled to its appeal expenses.

A total of 17.3 hours is claimed for counsel’s preparation for, attendance at, and services subsequent to the appeal hearing. The hearing itself lasted beyond the Commission’s normal closing time and dealt almost entirely with D.F.’s submissions. The time allotted is reasonable.

As allowed by Rule 78.1(b) of the Code, the hourly rate of the legal fee was appropriately adjusted to include the experience allowance established under the Legal Aid Services Act, 1998.

The total for legal fees including HST is $2,066.95. The disbursements claimed total $34. The legal fees and disbursements are allowed.

I find that D.F. shall pay Wawanesa’s appeal expenses of $2,100.95, inclusive of HST.

April 17, 2012

David Evans

Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2I was referring to the criteria in the Expense Regulation, s. 12(2) of Ontario Regulation 664, R.R.O. 1990, as amended, as replicated in Rule 75.2 of the Dispute Resolution Practice Code, Fourth Edition – updated August 2011.