Kumuthakumary Kulaveerasingam v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 344

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 344

FSCO A13-004423

BETWEEN:

KUMUTHAKUMARY KULAVEERASINGAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Deborah Pressman

Heard: Written submissions received by December 3, 2015 and delayed until disposition of the appeal on June 21, 2016

Appearances: David S. Wilson for Mrs. Kulaveerasingam

Katie McBride for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Kumuthakumary Kulaveerasingam, was injured in a motor vehicle accident on October 29, 2010. Her claim for Income Replacement Benefits (“IRBs”) was denied by State Farm Mutual Automobile Insurance Company (“State Farm”) and Ms. Kulaveerasingam applied for arbitration at FSCO.¹

The arbitration proceeded on July 28, 2014 with respect to two issues, namely, the entitlement of Ms. Kulaveerasingam to an order of ongoing IRBs, and a determination of the appropriate rate of interest for overdue payments. In a decision dated February 6, 2015, I made the following orders:

Ms. Kulaveerasingam is entitled to ongoing IRBs at the rate of $400.00 per week.
Ms. Kulaveerasingam is entitled to interest for the overdue payment of benefits pursuant to the New Schedule,² at the rate of 1 per cent per month, compounded monthly.

Ms. Kulaveerasingam appealed the decision on the appropriate rate of interest for overdue payments and was successful in her appeal. In his decision dated June 21, 2016, Director’s Delegate Blackman determined that Ms. Kulaveerasingam is entitled to interest on overdue benefits at the rate of 2 per cent per month, compounded monthly. An application for judicial review is pending.

The issue in this further hearing is as follows:

Is Ms. Kulaveerasingam entitled to her expenses incurred in respect of the arbitration hearing before me?

Result:

Ms. Kulaveerasingam is entitled to her expenses incurred in respect of this arbitation hearing in the amount of $3,559.50 (inclusive of HST).

EVIDENCE AND ANALYSIS:

I find that Ms. Kulaveerasingam is entitled to her expenses of the arbitration in the amount of $3,559.50 (inclusive of HST) for the following reasons.

The expense regulation requires an arbitrator to consider seven criteria in awarding all or part of the expenses incurred in respect of arbitration.³ Relevant to this decision is: “Each party’s degree of success in the outcome of the proceeding.”

As a result of the appeal, Ms. Kulaveerasingam was ultimately entirely successful and there are no other relevant criteria to consider. Therefore, the analysis is fairly simple and Ms. Kulaveerasingam is entitled to her reasonable expenses.

Even if she was unsuccessful in her appeal (or ultimately, judicial review), I would still award Ms. Kulaveerasingam her reasonable expenses due to her mixed success on the issue of IRBs.

Significantly, State Farm agreed to reinstate the IRBs at a very late stage in the arbitration process and caused Mrs. Kulaveerasingam to incur legal expenses. Therefore, I agree with Ms. Kulaveerasingam’s submission that her expenses are warranted and that conclusion is the most appropriate result, consistent with the criteria.

With respect to quantum, Ms. Kulaveerasingam requested $3,559.50 (inclusive of HST) for her expenses. I find her request to be an appropriate and reasonable amount considering the length of the arbitration process and hearing.

Pursuant to section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, I am fixing Ms. Kulaveerasingam’s expenses in this proceeding at $3,559.50 (inclusive of HST).

December 20, 2016

Deborah Pressman

Arbitrator

Date