Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2015 ONFSCDRS 244

Appeal P14-00032

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BHUPINDER SINGH GREWAL Appellant

and

AIG COMMERCIAL INSURANCE COMPANY OF CANADA Respondent

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: Mr. Frank J. Burns for the Appellant, Mr. Bhupinder Singh Grewal Mr. J. Claude Blouin for the Respondent, AIG Commercial Insurance Company of Canada

HEARING DATE: By written submissions received by November 10, 2015

APPEAL EXPENSE ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The Appellant, Bhupinder Singh Grewal, shall pay the Respondent, AIG Commercial Insurance Company of Canada, its legal expenses of this appeal fixed in the amount of $5,000, inclusive of HST.

November 17, 2015

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

My August 13, 2015 order dismissed this appeal and confirmed the Arbitrator’s August 7, 2014 order. I held that if the parties could not agree on appeal legal expenses, they were to seek an appeal expense hearing, as requested, within sixty days of the decision date.

The Respondent’s September 15, 2015 letter sought appeal legal expenses of $5,940.03, arguing it was entirely successful on appeal. Its Bill of Costs consists of 38.3 hours at $136.91 an hour, plus HST, and $14.71 in disbursements.

The Appellant’s revised November 5, 2015 Costs Outline totals $11,022.16 in appeal expenses. This includes 62 hours at various hourly rates. The Appellant rounds down his expenses by half, claiming $5,511.08 “in light of divided success.”

At paragraph 14 of his October 14, 2015 expense submissions, the Appellant argues a “principal issue in this Expense Hearing is whether [he] was entitled to have his claims adjudicated and have access to justice and present what were arguable and legitimate claims for re-election of benefits, entitlement to income replacement benefits and for multidisciplinary treatment at the Sierra Tucson facility.” His paragraphs 1 to 13 arguments set out the alleged strength of his case at first instance and the alleged weaknesses in the Respondent’s case.

The Appellant did have access to justice, presented his arguments and had his claims adjudicated in a four-day arbitration hearing before Arbitrator Feldman. Subsection 283(1) of the Insurance Act, R.S.O. 1990, c. I.8, restricts appeals from an order of an arbitrator to questions of law. As I stated in AXA Insurance (Canada) and Kernaghan, (FSCO P07-00018, February 4, 2008):

The restriction of appeals to matters of law reflects, in my view, legislative recognition that judicial resources are limited, that deference should be given to the skills and expertise of first-level adjudicators and that the need for a speedy, simplified and inexpensive dispute resolution system necessitates a narrowed basis for appeal. This 1996 legislative change confirms that arbitrations are not dress rehearsals; appeals are not a “second kick at the can.”

Thus, my August 13, 2015 decision in this appeal stated:

Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, stated that “an appeal is not a retrial of a case.” The Supreme Court quoted with approval Underwood v. Ocean City Realty Ltd. (1987), 1987 CanLII 2733 (BC CA), 12 B.C.L.R. (2d) 199 (C.A.):

The appellate court must not retry a case and must not substitute its view for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.

Rothwell v. Raes (C.A.), 1990 CanLII 6610 (ON CA), held that it is not for an appellate level “to weigh conflicting evidence or to reassess the relative merits of contradictory expert testimony.” Subsection 283(5) of the Insurance Act allows an appellate officer, based on an error of law, to vary the arbitrator’s order appealed from or substitute his or her order for that of the arbitrator. There is no provision for the appellate officer varying or substituting his or her findings of fact for that of the arbitrator.

The Appellant’s paragraph 17 of his October 14, 2015 expense submission concedes that Arbitrator Feldman effectively adjourned the Sierra Tucson issue. An arbitration hearing is now scheduled for December 8 and 9, 2015. One queries how an appeal of entitlement to this benefit was anything but premature.

The Appellant devoted six pages of his initial expense submissions to the question of arbitration legal expenses. The issue of arbitration legal expenses is not before me. Again, my jurisdiction under subsection 283(1) of the Insurance Act is limited to appeals from the order of an arbitrator on a question of law.

Rule 75.2 of the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014), sets out the criteria to be considered in determining legal expenses. I find relevant to this appeal criterion “a,” the Respondent’s ultimate success in this appeal (tempered by my comments below on the Respondent’s motion that the Appellant order the remaining arbitration transcripts) and criterion “e,” specifically an unnecessary appeal of the Sierra Tucson treatment plan issue. Based on these considerations, I award the Respondent its reasonable legal appeal expenses other than those related to its unsuccessful motion.

I agree with the Appellant’s October 14,th paragraph 22 expense submission, as Arbitrator Makepeace stated in Henri and Allstate Insurance Company of Canada, (OIC A-007954, August 8, 1997), that the overriding consideration in fixing legal expenses is reasonableness.

The Appellant argues at paragraph 27 that this appeal “entailed a narrow question of whether the arbitrator erred in law.” However, his main April 3, 2015 appeal written submissions were 126 paragraphs, set out in 44 pages. His reply submissions were another 24 paragraphs. His Books of Authorities had 40 cases. His Books of Documents were four and a half inches thick. A 216-page transcript of a medical witness was also produced. The Appellant brought an unsuccessful motion to adduce new evidence on appeal. His initial expense submissions ran 29 paragraphs.

The Respondent’s appeal submissions were a model of conciseness. Its responding written submissions were less than seven pages. Its response to the Appellant’s motion to allow new evidence was nine short paragraphs. Its oral submissions were one hour as opposed to the Appellant’s three. Its reply to the Appellant’s 12 pages of expense submissions was half a page.

Note is taken that succinctness is often the result of significant preparation as well as experience.

The Appellant’s November 5, 2015 Costs Outline submits there “was a complete review of the law and a complete review of the facts.” I am not persuaded by the Appellant’s submission that it was the Commission that “required both parties to provide full argument of the issues of income replacement benefits and medical benefits.” I am not persuaded by the Appellant’s November 2, 2015 statement that the Respondent’s 38 hours spent on this appeal is not understandable.

I am persuaded that the Respondent’s claim of 38 hours was necessitated by the Appellant’s presentation of his appeal. The Appellant’s November 5, 2015 Costs Outline argues that his own 62 hours spent on this appeal was “very fair and reasonable.” I find the Respondent’s Bill of Costs reasonable in these circumstances.

I issued two decisions in this appeal. Buried at paragraph 16 of his initial expense submissions, the Appellants notes that the first, issued October 10, 2014, dismissed the Respondent’s motion to require the Appellant to order a copy of the transcript of his evidence at arbitration. I deferred the question of the legal expenses of that motion.

My preliminary appeal decision noted that the Respondent did not argue that it was unable to afford the cost of further transcripts. The Appellant did argue he was unable to afford that expense. I was not persuaded to exercise my discretion to require the Appellant to order and pay for further transcripts. There was nothing preventing the Respondent from ordering further portions of the transcript it thought necessary for a full and fair appeal hearing.

The Respondent ultimately wisely decided it was not necessary to order further transcripts. The Respondent claims approximately five hours regarding the transcript preliminary issue. I am not allowing that portion of the Respondent’s appeal legal expense claim.

Delegate Evans, in Allstate Insurance Company of Canada and Klimitz, (P08-00018, January 9, 2014), cited Henri that a global and not a line-by-line assessment is appropriate. I allow the Respondent its legal expenses fixed in the amount of $5,000 inclusive of all fees, disbursements and HST as reasonable for this appeal unnecessarily complicated by the Appellant.