Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 220

FSCO A11-002508

BETWEEN:

BINH THI NGUYEN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

*Minor error under “Headings” corrected on December 22, 2015 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Lloyd (J. R.) Richards

Heard: Written submissions received by January 30, 2015 from Catherine Korte and Anthony Gatensby

Issues:

The Applicant, Binh Thi Nguyen, was injured in a motor vehicle accident on January 27, 2003. In a decision dated August 28, 2013, I dealt with her claims for statutory accident benefits under the Schedule.¹ While I reserved on the issue of expenses, I found that Mrs. Nguyen was not entitled to a caregiver benefit. I also found that Mrs. Nguyen was not entitled to a non-earner benefit.

The issue in this hearing is:

Is Economical entitled to its expenses incurred in respect of this arbitration hearing?

Result:

Economical is entitled to its expenses in the amount of $7,906.65 (inclusive of HST).

BACKGROUND:

Economical requested an expense hearing in this case on September 20, 2013. Shortly after Economical’s request for an expense hearing, Mrs. Nguyen appealed my orders to the Director’s Delegate. I deferred convening an expense hearing to after the Director’s Delegate’s issuing of the appeal decision. That appeal decision was issued on October 3, 2014, wherein my original orders were confirmed. The Director’s Delegate gave the parties 60 days within which to request an expense hearing.

Economical renewed its request for an expense hearing on November 5, 2014. Economical notified Mrs. Nguyen of its request by couriering its request and an accompanying book of authorities to her home on November 4, 2014. I advised the case administrator in this case to send Notice to the parties that the expense hearing would proceed by written submissions on December 11, 2014. Economical then served motion materials on Mrs. Nguyen. Subsequently, Mrs. Nguyen wrote to the Commission stating that, in her view, any expense hearing at the Commission would be “pending” the outcome of a Superior Court action she had initiated against Economical, among others. There appeared to be some confusion about whether the appeal and arbitration expense hearings would proceed together or be in person or by written submissions.

I wrote to the parties on December 5, 2014 to clarify matters. I ordered that the arbitration expense hearing would proceed by written submissions and separately from the appeal expense hearing. I also imposed new timelines. Even though it had already served materials, I required Economical to serve Mrs. Nguyen with its expense hearing materials by December 12, 2014. Mrs. Nguyen was then given 30 days to respond to Economical’s submissions. I advised the parties that after receiving their submissions I would determine entitlement to and amount of expenses and issue a written decision.

Mrs. Nguyen again wrote to the Commission on January 7, 2015 and requested an adjournment of the arbitration expense hearing on the basis that she had initiated a Superior Court action against Economical. I wrote to the parties on January 20, 2015 denying Mrs. Nguyen’s adjournment request. Because of the delay in advising Mrs. Nguyen of the denied adjournment request, I extended the deadline for her to submit her materials to January 30, 2015. Mrs. Nguyen did not file a response to Economical’s submissions. Accordingly, since I did not receive submissions from Mrs. Nguyen, I make my decision on expenses considering the submissions that I have received from Economical only.

EVIDENCE AND ANALYSIS

Entitlement

Subsection 12(2) of the Expense Regulation outlines seven criteria which I must take into account when awarding expenses.

Economical submits that subsection 12(2)1, which addresses each party’s degree of success in a proceeding, is relevant to its claim for expenses. It claims that since it was successful on all grounds at arbitration, the fees and disbursements it requests are reasonable and therefore fully recoverable.

I agree with Economical that success is the only criterion in the Expense Regulation that is relevant to my consideration of its request for expenses. No party raised novel issues and the other factors in the Regulation do not apply. It is well settled at this Commission that arbitrators do not have the discretion to consider factors outside of the Expense Regulation when determining expenses.² Given that Economical was completely successful on all issues at the arbitration hearing, I find that it is entitled to its expenses.

Amount of Expenses

Economical claims a total of $28,829.45 in expenses.

In determining the amount of expenses to be awarded, arbitrators at FSCO have continually found that the overriding consideration is reasonableness. In addition, arbitrators should take a broad strokes approach that takes into account the length of the proceeding and the complexity of the issues.³

Mrs. Nguyen’s primary claim in the arbitration hearing was for non-earner benefits. The test for entitlement to non-earner benefits is a difficult one to meet. In my decision in the main hearing, I found that Mrs. Nguyen established that the motor vehicle accident materially contributed to her impairments. However, I also found that, despite her impairments, Mrs. Nguyen did not meet the disability test to qualify for further benefits. Economical submitted a large volume of documents into evidence at the arbitration hearing. Mrs. Nguyen was self-represented and had significant difficulty in presenting her case. In fact, her daughter assisted her throughout the proceedings. She clearly suffered from psychological impairments that affected her ability to communicate. Even though she did not present enough evidence to support her claims, Mrs. Nguyen’s case was not frivolous. The fact that I found that she did not meet the disability test does not mean that her case had no merit.

The nature and difficulty of the main hearing in this case requires that I review the amount of Economical’s expense claim with a view to arriving at a reasonable figure while acknowledging what I consider to be Mrs. Nguyen’s prerogative to pursue her statutory rights.

Fees

I award Economical $5,656.80 in fees.

Economical claims $17,407.65 in total fees. There were 4 days of hearing in this case, with approximately 6 hours per day of hearing time. This amounts to 24 hours of hearing time. I allow 1 hour of preparation time for each hour of hearing time. This amounts to 24 hours of preparation time. The combined hearing and preparation time is 48 hours. The Legal Aid rate for the most senior counsel who appeared on this case is $117.85 per hour. 48 hours multiplied by the Legal Aid rate of $117.85 per hour amounts to $5,656.80.

Disbursements

I award Economical $2,219.85 in disbursements.

Economical claims $11,421.85 in total disbursements. The disbursements are outlined in invoices dated from March 28, 2012 to March 25, 2013. In determining any disbursement award, I am guided by the Expense Regulation which specifically outlines allowable disbursements.

In reviewing the disbursement claims, I deduct amounts for mileage/parking, binding/tabbing,⁴ transcripts and court reporter attendances. The amount for disbursements, excluding witness attendance is $725.55 ($642.08 plus HST of $83.47).

As for witness attendance, I award $1,494.30. For Dr. Monte Bail I award $750.00, being $250.00 for preparation and $500.00 for attendance for 1 day. I award $250.00 for Dr. Alborz Oshidari’s half-day attendance. I award $494.30 as requested by J.S. Occupational for their preparation and attendance at the hearing.

The total disbursements are in the amount of $725.55 ($642.08 plus $83.47 HST) and $1,494.30 for witnesses for a total of $2,219.85.

Total fees and disbursements awarded in this case are:

Fees: $5,686.80

Disbursements: 2,219.85

TOTAL: $7,906.65

October 26, 2015

Lloyd (J. R.) Richards

Arbitrator

Date

Financial Services Commission of Ontario