Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 85
FSCO A09-003232
BETWEEN:
P. B.
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before: Alec Fadel
Heard: By written submissions and an oral hearing that took place by teleconferce on December 9, 2014.
Appearances: David Preszler for P.B.
Bruce Chambers for State Farm Mutual Automobile Insurance Company
Background:
The applicant, P.B., filed an application for arbitration on or about December 21, 2009, concerning a motor vehicle accident that occurred on August 18, 2005. The main hearing commenced in June 2012 and took place over six days finally concluding with written submissions on April 2, 2013.
Prior to the main hearing, two preliminary issues were heard. In a decision dated July 26, 2011, Arbitrator Murray found that the applicant was out of time to take to arbitration the issue of housekeeping benefits but was not precluded from proceeding with her attendant care benefit claim. In her decision, the arbitrator invited the parties to make submissions on expenses if they were unable to agree on that issue between themselves. Arbitrator Killoran released a further preliminary issue decision on January 19, 2012, where she granted the applicant’s contested adjournment request in order to add the issue of catastrophic impairment to the arbitration. The arbitrator also made a finding that the child’s benefit was not deductible from the income replacement benefit. In that decision, the arbitrator dealt with the issue of expenses, awarding the applicant her expenses in the amount of $11,960.
In a decision dated November 5, 2013, I dealt with P.B.’s claims for statutory accident benefits under the Schedule1. In the main hearing the applicant was seeking a determination that she was catastrophically impaired as a result of the motor vehicle accident. She also claimed entitlement to ongoing income replacement and attendant care benefits.
In my decision, I made the following orders, while reserving on the issue of expenses:
P.B. is not catastrophically impaired as a result of the motor vehicle accident of August 18, 2005 pursuant to the Schedule;
P.B. is entitled to an income replacement benefit from August 18, 2008 and ongoing;
P.B. is entitled to an attendant care benefit at the monthly rate of $3,000.00 from May 7, 2006 to August 15, 2007, plus applicable interest, less any time of hospitalization.
Following the release of my decision, I received a request from the applicant to hold a hearing to deal with the issue of expenses. The hearing proceeded by way of written submissions with an oral hearing that proceeded by way of teleconference.
Issues:
The issues in this further hearing are:
Is P.B. entitled to her expenses incurred in respect of this arbitration hearing?
Is State Farm entitled to its expenses incurred in respect of this arbitration hearing?
Result:
- P.B. is entitled to her expenses of the arbitration fixed in the amount of $10,000.00.
EVIDENCE AND ANALYSIS:
The applicant is seeking $40,445.53 in legal fees (including HST) and $69,873.02 in disbursements, including witness fees, for a total claim of $110,328.55. State Farm is seeking its expenses in the amount of $27,889.70 in legal fees (including HST) and $1,346.70 in disbursements for a total claim of $29,236.64.
Subsection 282(11) of the Insurance Act provides that:
The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.
The criteria to consider are found at section 12(2) of Ontario Regulation 664, R.R.O. 1990, as amended, and read:
Each party's degree of success in the outcome of the proceeding.
Any written offers to settle made in accordance with subsection
(3).
Whether novel issues are raised in the proceeding.
The conduct of a party or a party’s representative that tended to
prolong, obstruct or hinder the proceeding, including a failure to
comply with undertakings and orders.
- Whether any aspect of the proceeding was improper, vexatious
or unnecessary.
- Whether the insured person refused or failed to submit to an
examination as required under section 42 of Ontario Regulation
403/96 (Statutory Accident Benefits Schedule — Accidents on or
after November 1, 1996) made under the Act or refused or failed
to provide any material required to be provided by subsection
42 (10) of that regulation.
- Whether the insured person refused or failed to submit to an
examination as required under section 44 of Ontario Regulation
34/