Financial Services Commission of Ontario
Neutral Citation: 2016 ONFSCDRS 195 FSCO A14-003628
BETWEEN:
GAGANPREET CHOHAN Applicant
and
PERSONAL INSURANCE COMPANY OF CANADA Insurer
DECISION ON EXPENSES
Before: Arbitrator Harvey Savage Heard: By written submissions completed May 31, 2016 Appearances: Mr. Brian Murnaghan for Mr. Gaganpreet Chohan Mr. Louis Covens for Personal Insurance Company of Canada
Issues:
The Applicant, Mr. Gaganpreet Chohan, was injured in a motor vehicle accident on June 3, 2011 and sought accident benefits from Personal Insurance Company of Canada, payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Chohan, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this Expense Hearing are:
- Is the Applicant required to pay Personal its expenses?
- Is the Insurer required to pay the Applicant his expenses?
Result:
- The Applicant is required to pay Personal its costs fixed at $6,000.00.
- The Applicant is not entitled to his costs.
EVIDENCE AND ANALYSIS:
INTRODUCTION
At a Pre-Hearing before Arbitrator Shapiro, the Arbitration Hearing was set for March 22 and March 23, 2016 at ADR Chambers.
At some point in or around March 2016, Mr. Covens notified Mr. Murnaghan that one of his expert witnesses would not be available, and that as a result he would need to bifurcate the Hearing, with that witness to be called at a later date. Mr. Murnaghan objected to bifurcating the Hearing and requested instead an adjournment.
Arbitrator Shapiro denied the adjournment and left it to the Hearing Arbitrator whether or not the Hearing would be bifurcated.
On March 15, 2016, following the Insurer’s payment of the outstanding amount of the income replacement benefits (“IRBs”), the Applicant sought to withdraw on behalf of his client on a no costs basis. Mr. Covens did not accede to this.
There were earlier offers made by the Insurer to withdraw as early as November 13, 2015, and these offers were made either on a no costs basis or, after a certain deadline had passed according to its offer, on a partial indemnity of cost basis. These are referred to in paragraph 12 of the Respondent’s Submissions and acknowledged by the Applicant.
On March 16, 2016, Arbitrator Shapiro granted the Applicant’s Motion to Withdraw, deferring a decision on costs to another Arbitrator, and set out a written timetable for written submissions. These were complied with.
The Applicant seeks costs fixed at $1,000.00 and the Insurer for his part seeks costs fixed at $6,000.00.
ENTITLEMENT TO EXPENSES
Subsection 282(11) of the Insurance Act provides as follows:
Expenses
(11) 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. 1996, c. 21, s.38 (4).
Regulation 664, R.R.O. 1990, in turn, provides:
12 (1) The expenses set out in the Schedule are prescribed for the purpose of subsection 282 (11) of the Act. R.R.O. 1990, Reg. 664, s. 12.
(2) An arbitrator shall, under subsection 282 (11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding: (emphasis added)
- 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 403/9