Galarneau v. Allstate Insurance Company of Canada, 2014 ONFSCDRS 131

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 131

FSCO A09-002397

BETWEEN:

THEODORE GALARNEAU

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON EXPENSES

Before: Eban Bayefsky

Heard: By telephone conference call on August 12, 2014

Appearances: Brian Gualazzi for Mr. Galarneau

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, Theodore Galarneau, was injured in a motor vehicle accident on November 27, 1999. In a decision dated September 18, 2013, 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. Galarneau is not entitled to receive a non-earner benefit.
Allstate is not liable to pay a special award.
Mr. Galarneau is not entitled to interest.

The parties now seek a determination on their entitlement to arbitration expenses. In the event that one or the other is found to be entitled to their expenses, the parties have agreed on the quantum of expenses.

The issue in this further hearing is:

Is either party entitled to its expenses incurred in respect of the arbitration hearing?

Result:

Mr. Galarneau shall pay to Allstate Insurance Company of Canada arbitration expenses in the amount of $11,974.72.

EVIDENCE AND ANALYSIS:

Pursuant to Rule 75.2 of the Dispute Resolution Practice Code, an arbitrator shall only consider certain enumerated criteria in an award of arbitration expenses. The enumerated criteria relevant to the present case are as follows:

Each party’s degree of success in the outcome of the proceeding.
Any written offers to settle made in accordance with Rule 76.
Whether novel issues are raised in the proceeding.

Allstate was entirely successful in the arbitration. Written offers to settle the matter were exchanged prior to the hearing, with Allstate’s offer being (more) reasonable in the circumstances. The issues raised in the hearing were not particularly novel, although one secondary question did arise as to how Mr. Galarneau’s temporary absence from school following the accident might affect his entitlement to non-earner benefits. For reasons set out in the decision, I found that he was not entitled to non-earner benefits. Mr. Galarneau argued that, given that Allstate failed to explain why he was not entitled to non-earner benefits, he had no choice but to pursue the matter through to arbitration. I addressed the question of procedural breaches giving rise to substantive entitlement in the body of the decision, on the basis of caselaw established well before the hearing. I note that the parties exchanged settlement offers following the issuance of the caselaw in question. I do not find that this aspect of the case affects Mr. Galarneau’s entitlement to expenses.

Therefore, based on the criteria I am required to apply in this case, I find that Allstate is entitled to its arbitration expenses.

In the event of an award of expenses to Allstate, the parties agreed that the quantum should be $11,974.72, which I find to be reasonable.

August 13, 2014

Eban Bayefsky

Arbitrator

Date