Ivana Vukov v. Aviva Canada Inc., 2015 ONFSCDRS 49

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 49

FSCO A11-002668

BETWEEN:

IVANA VUKOV

Applicant

and

AVIVA CANADA INC.

Insurer

DECISION ON EXPENSES

Before: Arbitrator John Wilson

Heard: By written submissions

Appearances: No-one appearing for Ms. Vukov

Sean Giovannetti for Aviva Canada Inc.

Issues:

The Applicant, Ivana Vukov, was injured in a motor vehicle accident on November 19, 2007. In a decision dated April 17, 2014, I dealt with her claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of expenses:

Ms. Vukov’s adjournment request is denied.
There is no jurisdiction to order a transfer to the Superior Court.
Ms. Vukov’s claims are dismissed.

The issue in this further hearing is:

What is the amount of expenses that shall be paid by Ms. Vukov to Aviva?

Result:

Ms. Vukov shall pay $18,403.89 to Aviva as its fixed expenses in this matter.

EVIDENCE AND ANALYSIS:

This often-delayed arbitration took place in Kitchener Ontario on December 9, 2013. At the outset of the arbitration hearing, Ms. Vukov appeared, unrepresented but accompanied by some family members and requested a further adjournment to obtain counsel and to transfer her claim into the Superior Court.

Both the Commission and counsel for Aviva had attempted to contact Ms. Vukov prior to the hearing to confirm whether or not she intended to proceed with the hearing, but to no avail. Consequently, Aviva had attended at the hearing prepared to proceed.

Having refused Ms. Vukov’s last minute request for an adjournment (for reasons set out in my decision April 17, 2014), I ordered that the arbitration proceed.

Ms. Vukov refused to proceed with the hearing and packed up her papers and left the hearing room. The balance of the hearing proceeded in her absence. At the time of the first dismissal decision I wrote:

Ms. Vukov has had no success in any element of her claim. By not requesting an earlier adjournment, and then abandoning the arbitration hearing when her last-minute adjournment request was rejected, Ms. Vukov has disentitled herself to any order for expenses.

Given the above, Aviva, in the 30 days following the delivery of this decision, shall serve and file its outline of expenses claimed, together with any supporting submissions, to a maximum of five pages. Ms. Vukov may respond, provided that she serves and files her own submissions within fourteen days of the delivery of Aviva’s expense outline and submissions. The maximum five-page limit will apply to Ms. Vukov’s submissions as well.

Aviva has now filed its claim for expenses. Ms. Vukov, although given an opportunity to respond, has not filed any submissions or responded in any way to the expense claim.

The hearing was scheduled to commence on December 9, 2013 in Kitchener. Counsel and representatives for Aviva were present and ready to proceed with the hearing. Under the circumstances it was reasonable for Aviva to incur expenses in anticipation of a full hearing.

With regard to the quantum of expenses claimed by Aviva, it is not the practice at the Commission for arbitrators to conduct a full assessment of expenses claims on a line by line basis. Certainly given that Ms. Vukov has not felt inclined to comment on the expense claim, such a detailed examination is even less justified. Still, however, it is incumbent upon Aviva to justify as reasonable the amount claimed as expenses and to restrict its costs to those permitted under the pertinent regulations and practice. This includes using the legal aid tariff as the base point for the calculation of expenses.

Aviva has claimed a total of $19,355.53 in fees and disbursements as expenses in this matter. The amounts appear to be correctly calculated based on the appropriate legal aid rates for the lawyers and the law clerks who performed the work.

Some of the disbursements however appear not to be as straightforward. Aviva chose to retain counsel in Ottawa for a claim that was made in Kitchener, where the arbitration hearing would be presumptively held.

While Aviva has the right to retain any qualified lawyer it feels inclined to engage, and there is no doubt that Mr. Gioanvetti acquitted himself honourably, it is not necessarily entitled to the extra costs incurred to have a lawyer in Ottawa handle a matter that was always understood to be heard in southwestern Ontario.

As noted, Aviva claims for airfare, train fare and taxi cists, baggage fee receipts, automobile expenses and mileage as well as the cost of a hotel. These total some $1,744.81. While no explanation has been given for these items it is likely that they arise again from the simple choice of Aviva to retain a law firm in a city on the other side of the province from Kitchener.

There is no evidence that Aviva is headquartered in Ottawa nor any evidence that the

Policy provided any hint that Ottawa would play any role in the event of a dispute over benefits

payable. It would be unlikely that Ms. Vukov would have anticipated that she might be held

responsible for travel expenses for Aviva’s lawyer should litigation arise.

Having no explanation as to why it was necessary to incur the travel-related expenses claimed by Aviva I do not accept that they form part of the expenses that reasonably should be borne by the losing party. Consequently I disallow the $1,744.81 claimed in the Bill of Costs which appears to relate to these discretionary travel expenses.

The claim for H.S.T. on the disallowed expenses, the amount of $206.83 is also deducted from the expense claim.

With those exceptions, I order that Ms. Vukov pay the balance of Aviva’s expenses as claimed. Consequently she shall pay the fixed amount of $18,403.89 being the total claimed less $1,951.64 for the disallowed travel expenses. (inclusive of H.S.T.)

March 13, 2015

John Wilson

Arbitrator

Date