Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 142
Appeal P14-00034
OFFICE OF THE DIRECTOR OF ARBITRATIONS
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Appellant
and
ROSHANTH BALASUNDERAM Respondent
BEFORE: Delegate Lawrence Blackman
REPRESENTATIVES: Ms. Angela Romano for the Appellant, State Farm Mutual Automobile Insurance Company Ms. Menreet Salama for the Respondent, Mr. Roshanth Balasunderam
HEARING DATE: July 2, 2015 by teleconference
APPEAL EXPENSE ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The Respondent, Roshanth Balasunderam, shall pay the Appellant, State Farm Mutual Automobile Insurance Company, its legal expenses of this appeal, fixed in the amount of $2.594.00, inclusive of disbursements and HST.
July 3, 2015
Lawrence Blackman Director’s Delegate Date
REASONS FOR DECISION
I. BACKGROUND
My March 20, 2015 decision allowed this appeal in part, varying the Arbitrator’s August 14, 2014 Order by:
(i) Reducing the income replacement benefits (“IRBs”) owing from $2,528.22 to $1,533.81, exclusive of interest.
(ii) Rescinding the Arbitrator’s award of housekeeping and home maintenance benefits.
On appeal, the Respondent agreed the Arbitrator had erred in calculating the quantum of IRBs payable, but by awarding too little rather than too much. The Respondent had not complied with the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014) (the “Code”) in failing to deliver an appeal or a cross-appeal of the Arbitrator’s decision. I denied the Respondent’s request that the Arbitrator’s IRB order be varied to a higher amount.
Rather, finding that the Arbitrator’s IRB payment order for the last three weeks of August 2010 totalling $994.41 was based on an absence of evidence and, therefore, constituted an error of law, I reduced the IRBs payable accordingly.
I also found the Arbitrator had erred in law in deciding housekeeping and home maintenance benefit entitlement for a period that was not before him, that the Appellant did not know was being disputed and to which the Appellant did not have an informed opportunity to respond.
The last order appealed was arbitration legal expenses. The Appellant conceded the Arbitrator’s decision in this regard was internally contradictory. The Arbitrator’s Order, consistent with page 14 of his decision, stated “[t]here is no order on the issue of expenses. I remain seized should the parties be unable to resolve this issue on their own.” Page 3 of the Arbitrator’s decision, however, stated that the Appellant was liable to pay the Respondent’s arbitration expenses.
Following Allstate Insurance Company et al. and Saliba, (FSCO P01-00031, July 24, 2001), I held that the Arbitrator’s expense order itself, from which an appeal is taken, was clear there was not yet any arbitration expense order. This was consistent with an absence of any reasons by the Arbitrator in this regard, as well as the parties’ agreement they had not yet provided any expense submissions. Accordingly, I saw no error of law in the Arbitrator’s actual expense order.
The Appellant argued that if the Arbitrator had left the question of legal expenses open, then the 30 day rule in Rule 79 of the Code now rendered both parties out of time to request an arbitration expense hearing. However, the Appellant’s August 25, 2014 Notice of Appeal, 11 days after the Arbitrator’s decision, had sought a stay of the Arbitration Order. The Respondent did not object to that request. Following an October 9, 2011 preliminary discussion, my letter decision exercised my discretion under subsection 283(6) of the Insurance Act to stay the Arbitrator’s August 14, 2014 Order pending the resolution of this appeal.
My March 20, 2015 decision stated that I was not persuaded to restrict either party requesting a determination before the Arbitrator of entitlement to and/or the quantum of arbitration legal expenses. If the parties could not agree on the legal expenses of this appeal, an appeal expense hearing was to be requested within 45 days.
The Appellant requested an appeal expense hearing on March 25, 2015. The Respondent’s April 20, 2015 letter stated he was seeking his appeal legal expense. I set the following time lines:
May 4, 2015 for the parties to deliver their respective Bill of Costs and expense submissions.
May 29, 2015 for the parties to deliver their responding expense submissions to the other party’s Bill of Costs and expense submissions.
June 24, 2015 for any reply expense submissions as well as any supporting documentation in respect of any disputed items in their own Bill of Costs.
My June 4, 2015 letter acknowledged the May 4, 2015 Expense Submissions and Bills of Costs of the Appellant seeking $6,232.72 and the Respondent seeking $6,852.19. While I had the Respondent’s May 29, 2015 responding expense submissions, nothing further had been received from the Appellant, notwithstanding messages left in this regard by the Appeals Administrator.
In response, the Appellant resent its May 4, 2015 Expense Submissions and Bill of Costs. My