Financial Services Commission of Ontario
Neutral Citation: 2014 ONFSCDRS 130
FSCO A11-001155
BETWEEN:
WEI CHANG
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before: Alan Mervin
Heard: By written submissions; submissions of the Applicant were received on February 26, 2014, reply by the Insurer received on March 6, 2014.
Appearances: Darryl Singer for Ms. Chang Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Wei Chang, was injured in a motor vehicle accident on April 13, 2008. In a decision dated April 26, 2013, 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:
The Applicant’s claim for housekeeping and home maintenance benefits is dismissed.
The Applicant is entitled to attendant care benefits in the amount of $815.63 monthly from April 14, 2008 to August 28, 2008 plus interest on the overdue attendant care benefits in accordance with the Schedule.
The applicant’s claim for income replacement benefits is dismissed.
The decision on expenses is reserved, to be resolved in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.
The issue in this further hearing is:
- Is either party entitled to recover its expenses and, if so, in what amount?
Result:
- Each party shall bear its own expenses in respect of this arbitration hearing.
EVIDENCE AND ANALYSIS:
Background:
The arbitration hearing in this matter took place on June 28, 2012. It proceeded as a one day oral hearing before me, with essentially one witness, the Applicant, giving oral evidence with the aid of an interpreter. Notwithstanding the need for translation of the Applicant’s evidence, the hearing was completed in one day.
Criteria to be considered:
Rule 75.2 (a) to (g) of the Dispute Resolution Practice Code (Fourth Edition — Updated August 2011) sets out the criteria to be considered when considering an expense award.
I will now deal with the relevant criteria :
(a) Each Party’s Degree of Success
While neither party achieved its ultimate objective, each side was partially successful. As the outcome was a mixed result, based on this criterion, I find that each party should bear its own arbitration expenses. I agree with the Applicant’s submission that an Applicant should not be penalized on the mixed results of a hearing.
In my decision, issued on April 26, 2013, I dismissed the Applicant’s claim for Income Replacement Benefits, finding that the applicant’s testimony was unreliable, containing several contradictions. I found the medical evidence relied upon by the Applicant unconvincing and was insufficient to make a finding in her favour. She was unable to prove on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of her pre-accident employment.
I also dismissed the claim for housekeeping and home maintenance benefits, as the parties agreed that the Insurer had fully paid the benefit over the period claimed by the Applicant. This is something that could have been determined prior to the hearing, as both parties were in possession of sufficient documentation to deal with this prior to the hearing, and ought to have done so, in my view. Under these circumstances, although the claim was dismissed, it can hardly be said that the Insurer was successful in the usual sense, because ultimately, there was really nothing in dispute between the parties.
The Applicant’s claim for attendant care was successful. The Applicant claimed benefits from the date of the accident, April 14, 2008, to the time of the Insurer’s receipt of the Form 1, June 23, 2008. After receipt of the Form 1 by the Insurer, benefits were paid in full until termination.
The Insurer’s position was that they should not have had to pay the benefit until completion and receipt of the Form 1.
I found in the Applicant’s favour, and ordered payment of Attendant Care benefits from the date of the accident until June 23, 2008, which was the period in dispute.
(b) Any written offers to settle made in accordance with Rule 76:
The Applicant made a written offer to settle on June 22, 2012. That offer was substantially higher than what was eventually awarded, and not accepted or responded to by the Insurer. The Insurer did not make any written offers. Based on the outcome of the hearing, I conclude that this criterion has no application to the determination of expenses in this case.
(c) Whether novel issues are raised in the proceeding:
There were no novel issues raised in this proceeding.
(d) 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:
The Applicant submits that housekeeping and home maintenance was still a live issue at the commencement of the hearing, because the Insurer did not define clearly the period for which payment was made.
The Insurer submits that the Applicant had all the necessary documents to determine for which period payment was made, and that only one lump sum payment was made in satisfaction of the entire claim.
I find this criterion has no application with respect to the issue of expenses in this case. The parties’ failure to clarify the status of the claim prior to the start of the hearing did not unduly prolong the proceeding, and, in any event, I find both parties equally at fault.
(e) Whether any aspect of the proceeding was improper, vexatious or unnecessary:
In its submission, State Farm blames the Applicant for delaying its productions and causing the Insurer to request a resumption of pre-hearing to deal with outstanding productions.
The Applicant submits that the resumption was unnecessary, that much of the delay was caused by the late arrival of third party documents which the Applicant submits were produced when received, and that the Applicant was not financially in a position and could not pay for the costs of the productions; and that the Insurer should have borne these costs “up front”, rather than settle the costs after the fact, as suggested by the Insurer.
The Applicant further submits that production requests for documents were made to third parties promptly, but lack of payment delayed their production; and that as soon as the Insurer paid the production costs, the documents were produced by the Applicant forthwith upon receipt.
I am not prepared to assign fault for any production delays at this time. The submissions with respect to this are general in nature; if the Insurer knew that the Applicant was impecunious and could not afford to pay for the productions, perhaps it ought to have paid sooner to speed up the process. However, it is not known if the Insurer was aware of the Applicant’s financial circumstances, at least not until the resumption of the pre-hearing, when agreement was reached on the balance of outstanding productions.
I conclude that this criterion has no application to the determination of expenses in this case.
The remaining criteria, (f) and (g) deal with whether the Applicant refused or failed to attend section 42 or 44 examinations respectively, and are not applicable to this