Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 125

FSCO A12-001462

BETWEEN:

HALEH SHOKAT

Applicant

and

AXA INSURANCE (CANADA)

Insurer

Before: Isoken Osunde

Heard: By written submissions received by March 30th 2015

Appearances: Shahen Alexanian for Mrs. Shokat Michael Knez for AXA Insurance (Canada)

Issues:

The issue in this hearing is:

Is Mrs. Shokat entitled to her expenses incurred in respect of this arbitration hearing?

Result:

Mrs. Shokat is entitled to her expenses in respect of the arbitration hearing fixed in the amount of $5,722.00.

Background:

The Applicant, Haleh Shokat, was injured in a motor vehicle accident on April 23, 2010. In a decision dated October 3, 2014, I dealt with Mrs. Shokat’s claims for statutory accident benefits under the Schedule¹. I made the following orders while reserving on the issue of expenses.

Mrs. Shokat is entitled to payments for housekeeping and home maintenance services at the rate of $100.00 per week from April 24, 2010 to November 30 2010 and $50.00 per week from December 1, 2010 to April 22, 2012.
Mrs. Shokat is entitled to receive a medical benefit in the amount of $612.72 for custom orthotics recommended by Quality Health Assessment under a treatment plan dated September 13, 2010.

Following the release of my decision, I received a request from Mrs. Shokat for a hearing on the issue of expenses. I conducted the hearing by way of written submissions.

EVIDENCE AND ANALYSIS:

Mrs. Shokat submits that she is entitled to $15,537.50 in legal fees (including HST) and $2,722.00 in disbursements (including HST). AXA submits that each party should bear its own expenses. For the reasons that follow, I find that Mrs. Shokat is entitled to her expenses in the amount of $5,722.00.

Rule 75 of the Dispute Resolution Practice Code (Fourth Edition, Updated — January 2014) (the “Code”) sets out the criteria for the award of expenses. I find that the only criteria relevant in this case are the degree of success, written offers to settle and conduct prolonging the proceeding.

Each Party’s Degree of Success.

Mrs. Shokat’s claim for housekeeping and home maintenance services was at a rate of $100.00 per week from the date of loss (April 2010) to the 2 year anniversary of the accident. In my decision, I found entitlement to housekeeping expenses at $100.00 per week from April 2010 to November 2010 and $50.00 per week from December 2010 to the 2 year anniversary of the accident. I find therefore that Mrs. Shokat was partially successful at the Arbitration.

Any Written Offers to Settle Made

On February 21, 2014, Mrs. Shokat made an offer by email to AXA to settle her claim on a full and final basis for $24,000, inclusive of costs and disbursements. Although AXA submits that Mrs. Shokat did not provide a breakdown of the offer in order for it to properly respond, AXA did respond with an $8,500.00 all-inclusive offer.

AXA paid Mrs. Shokat $12,097.93 following the release of my decision, inclusive of interest. I reject AXA’s submission that its offer is closer to my award than the offer Mrs. Shokat made. Although close to my award for benefits only, AXA’s offer does not include interest, expenses and any value for the fact that Mrs. Shokat’s file remains open, after my decision. I find that neither offer is close enough to my award to be given any weight in the determination of entitlement to expenses.

The Conduct of a Party or a Party’s Representative that Tended to Prolong, Obstruct or Hinder the Proceeding

Mrs. Shokat withdrew her claim for income replacement benefit one day before the arbitration hearing commenced. Mrs. Shokat submits that despite this withdrawal, AXA insisted on calling Mrs. Shokat’s former employer as a witness² thereby prolonging the proceedings unnecessarily. Having ruled that the evidence was relevant and given that the duration of the testimony was short in nature, I find that AXA did not delay or prolong the proceedings by calling this witness.

Conclusion

Given her partial success I find that Mrs. Shokat is entitled to her reasonable expenses of the arbitration.

Mrs. Shokat claims expenses in the amount of $15,537.50 (inclusive of HST) for 80 hours of work at a ratio of 4:1. I find this amount excessive given the nature of the case. Mrs. Shokat’s case was not a complex one³. The total duration of the hearing was for 2 days.

The total amount of disbursements claimed is $2,722.00.⁴ I find the claim for disbursements to be reasonable and recoverable.

After considering the complexity of the case and arbitral jurisprudence that the objective of an expense order is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful party,⁵ I find that Mrs. Shokat is entitled to expenses for fees in the amount of $3,000.00. Therefore, the total amount payable by AXA for expenses of the arbitration is $5,722.00 (inclusive of taxes).

June 12, 2015

Isoken Osunde Arbitrator

Date