Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 106
Appeal P13-00029
OFFICE OF THE DIRECTOR OF ARBITRATIONS
BINH THI NGUYEN Appellant
and
FEDERATION INSURANCE COMPANY OF CANADA1 Respondent
BEFORE: David Evans
REPRESENTATIVES: Rose Le for Binh Thi Nguyen Catherine Korte for Federation Insurance Company of Canada
HEARING DATE: By written submissions
APPEAL EXPENSE ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mrs. Nguyen shall pay Federation Insurance Company of Canada its legal expenses of this appeal in the amount of $5,000.00, inclusive of disbursements and HST.
May 15, 2015
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Mrs. Binh Thi Nguyen appealed the order dated August 28, 2013 by Arbitrator Lloyd (J.R.) Richards, in which he found Mrs. Nguyen not entitled to further caregiver benefits or a non-earner benefit pursuant to the SABS–1996.2 I denied the appeal in my decision dated October 3, 2014. Federation now seeks its appeal expenses.
II. BACKGROUND AND ANALYSIS
This should have been a relatively straightforward appeal except for the actions of Ms. Nguyen and her representative, her daughter. At the beginning of the appeal hearing, Mrs. Nguyen asked for leave to call doctors to testify, which I denied as this was an appeal hearing and not a re-hearing.
A new issue raised by Mrs. Nguyen on appeal was that the Arbitrator erred in law by proceeding with the arbitration hearing with an unrepresented disabled applicant. I found that there was nothing to indicate that the issue of capacity was ever in dispute, or raised, that the Arbitrator had no obligation to direct a hearing on mental capacity, and that the Arbitrator did not err in law in allowing Mrs. Nguyen to present her own case. I found no evidence or indication of any problems in Mrs. Nguyen presenting her case on appeal, either.
As for the substance of the appeal, it turned on the Arbitrator’s assessment of the evidence, which is not subject to review as an error of law.
After the appeal hearing, Ms. Rose Le sent me a highly inappropriate letter dealing with settlement discussions that preceded the arbitration hearing. Delegate Blackman had earlier recused himself because settlement figures were revealed during a pre-hearing conference, so as I stated in my decision, Ms. Le knew full well how inappropriate were her actions.
Federation then requested an appeal expenses hearing. Ms. Le wrote to me stating that the appeal was over because Ms. Nguyen had started a court action regarding the alleged settlement. I wrote on December 5, 2014:
[T]he appeal is not over until I determine expenses. The letters Ms. Le sent to me before my decision was released were completely unacceptable and should not have been sent to me. I ignored them. I am also not affected by and have no interest in the other court actions Ms. Nguyen has started. Until I receive a court order staying the appeal expenses hearing, I will proceed to complete the appeal process.
I also ordered that the arbitration expense hearing would proceed by written submissions, with no oral submissions or witness testimony. Federation was to deliver its submissions to Ms. Nguyen by December 12, 2014, and Ms. Nguyen would then have 30 days to respond.
Federation served its submissions in time. However, instead of responding, Ms. Nguyen sought an adjournment because of the unrelated court action. In my letter of January 19, 2015, I denied the request, noting that “Any court case against Economical Mutual et al. is irrelevant to our proceedings. Since the deadline for responding submissions has passed, I will decide expenses based on the materials at hand.”
Turning to entitlement to legal expenses, Federation was entirely successful on appeal. The first criterion under s. 12(2) of the Expense Regulation, R.R.O. 1990, Reg. 664, is “Each party’s degree of success in the outcome of the proceeding.” No other criterion favours Ms. Nguyen, and accordingly I find that Federation is entitled to its reasonable appeal legal expenses.
Federation is seeking $7,064.00 in fees, including tax, and $282.57 in disbursements, including tax, for a total of $7,346.57. The hourly rates claimed are pursuant to R. 78.1 and reflect the tariff structure put in place by the Legal Aid Services Act, 1998, S.O. 1998, c. 26. The total hours claimed are 61.6. Federation submits:
This matter was particularly challenging and complex, given the fact that Ms. Nguyen was not represented by counsel and the numerous duplicitous communications made by them. The dockets reflect extensive discussions and correspondence between counsel and either Mrs. Nguyen or her daughters Ms. Cindy Le and Ms. Rose Le.
The total claimed is above the average awarded to insurers who succeed on appeal: see Bains and RBC General Insurance Company, (FSCO P09-00005, September 8, 2010). However, I find a higher amount is warranted, given the extra time devoted to the case by counsel due to the actions of Ms. Nguyen.
I find Federation is entitled to appeal expenses in the amount of $5,000.00, inclusive of disbursements and HST and the expenses of this appeal expense hearing.
May 15, 2015
David Evans Director’s Delegate
Date
Footnotes
- Incorrectly identified as Economical Mutual Insurance Company in the original arbitration hearing.
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.