Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 336

Appeal P16-00039

OFFICE OF THE DIRECTOR OF ARBITRATIONS

TTC INSURANCE COMPANY LIMITED Appellant

and

THE ESTATE OF FRANCIS AGIUS Respondent

BEFORE: Delegate Jeffrey Rogers

REPRESENTATIVES: Mr. Chad Townsend, solicitor for TTC Insurance Company Limited Mr. Sandev Purewal, solicitor for Estate of Francis Agius

HEARING DATE: By written submissions, completed on December 1, 2016

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

TTC Insurance Company shall pay the Estate of Francis Agius its appeal expenses in the amount of $2,500.

December 16, 2016

Jeffrey Rogers Director’s Delegate Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

In a decision dated September 19, 2016, I dismissed TTC’s appeal of the Arbitrator’s order. I ruled that the Arbitrator was correct in concluding that the executrix of the Estate of Francis Agius had the authority to instruct counsel to commence and pursue the proceeding, without court appointment, and that counsel being unaware that Mr. Agius had died when the application for mediation was filed did not erode that authority. I further ruled that, even if correct on the issue of authority, existing jurisprudence meant TTC’s request for dismissal of the arbitration would be denied. I added a clause to the Arbitrator’s decision, amending the title of the proceedings to reflect the Arbitrator’s finding that the arbitration was commenced by the Estate of Francis Agius.

The Estate now seeks its legal expenses of the appeal.

II. BACKGROUND

The Estate was successful on the appeal. It submits that it is entitled to its expenses, because of its success. TTC submits that no expenses should be ordered “due to the continuing default of counsel and/or Mrs. Francis Agius or, if costs are to be fixed, they should be payable by the estate of Mr. Francis Agius to the insurer once this estate is constituted.”

III. ANALYSIS

I find that the Estate is entitled to its expenses, based on its success. TTC’s submissions on expenses simply repeat and rehash its submissions regarding the lack of authority of the executrix, which were rejected in the appeal. I need not revisit them here.

The Estate seeks expenses in the amount of $5,923.28, for both the appeal and the hearing before the Arbitrator. Although Director’s Delegates have assumed jurisdiction to fix arbitration expenses in the rare case, there is no compelling reason to do so here. This was an appeal from a decision on a preliminary issue and the arbitration is ongoing.

Given the history of the appeal, including the fact that it was resolved without an oral hearing, I fix the quantum of appeal expenses at $2,500, inclusive of disbursements and HST.