Jeyapalan Subramaniam v. Wawanesa Mutual Insurance Company, 2016 ONFSCDRS 9

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 9

Appeal P14-00010

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JEYAPALAN SUBRAMANIAM Appellant

and

WAWANESA MUTUAL INSURANCE COMPANY Respondent

BEFORE:

David Evans

REPRESENTATIVES:

David S. Wilson for Mr. Subramaniam

J. Claude Blouin for Wawanesa Mutual Insurance Company

HEARING DATE:

October 19, 2015 by teleconference

APPEAL EXPENSES ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Wawanesa Mutual Insurance Company shall pay to Mr. Jeyapalan Subramaniam his legal appeal expenses in the amount of $5,500, inclusive of disbursements and HST.

January 13, 2016

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Subramaniam successfully appealed Arbitrator Sone’s Variation order dated February 28, 2014, that allowed Wawanesa Mutual Insurance Company to deduct Canada Pension Plan disability benefits from income replacement benefits previously awarded under the SABS–1996.¹

The Arbitrator issued her order on the record without having served a Notice of Hearing after Mr. Subramaniam failed to file written submissions. She found he had failed to disclose the CPP benefits at the previous arbitration hearing granting IRBs and so a variation allowing the deduction should be made because evidence was unavailable at the arbitration hearing.

I allowed the appeal on both procedural and substantive grounds. I found that, unlike on appeal, there is no power in a variation proceeding to decide the matter without a Notice of Hearing, absent consent. Furthermore, I found there was no evidence to suggest a lack of disclosure. Finally, I found that the criterion of evidence being unavailable at an arbitration hearing did not apply when, as in this case, both counsel knew about the evidence.

Mr. Subramaniam now seeks his expenses of both the Variation and the Appeal. While normally the expenses should be determined separately, in this case both parties agreed to my determining all the expenses, and I find it would be a waste of resources to remit the Variation expenses when the total claimed for the Variation is only about 2 hours out of a total of about 34 hours.

II. ANALYSIS

The first criterion for expenses listed in Rule 75.2 of the Dispute Resolution Practice Code, Fourth Edition – Updated January 2014 is Rule 75.2(a), namely “Each party’s degree of success in the outcome of the proceeding.”

Mr. Subramaniam submits that, as he was successful throughout, he is entitled to his expenses.

Wawanesa submits that no expenses should be allowed, relying on the criterion in Rule 75.2(d), “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.” Wawanesa submits that, had the insured’s representative complied with his obligations under the Code to provide his submissions, the appeal would probably have been unnecessary as there probably would have been no Variation Order.

However, I find that Wawanesa’s submission essentially concedes that Mr. Subramaniam would have had to make submissions and proceed to a hearing in any event. Thus, most of the expenses claimed would have been incurred regardless. Furthermore, I find that an important legal point was made as a result of the appeal, so I find that, pursuant to R. 75.2(c), novel issues were raised in the appeal. While Mr. Subramaniam should have provided his submissions when asked, I do not find that a reason to entirely deny him his legal expenses.

Turning to the amount of expenses, Mr. Subramaniam claimed around $6,440 in total. There were some additional counsel fees because Mr. Wilson, Mr. Subramaniam’s counsel, provided an affidavit for the appeal, so Mr. Robert G. Plate had to be retained for the appeal. With respect to the Bill, Wawanesa pointed out a couple of small errors, reducing the total to $6,170, but did not dispute the amount claimed otherwise. However, the additional time of 1.5 hours for preparing the bill of expenses and attending at the expense hearing at $150 an hour would bring it back to $6400.

As I noted in Allstate Insurance Company of Canada and T.S., (FSCO P11-00032, July 17, 2015), a line-by-line assessment of the expenses claimed is not appropriate. Rather, a global assessment of reasonable expenses should be made. I find that, while it was necessary for Mr. Subramaniam to retain Mr. Plate for the appeal, thus increasing the expenses, some account should be taken of Mr. Wilson’s failure to provide submissions at variation when asked, regardless of his understanding of the procedures on a variation at the Commission.

I find a reasonable global assessment for the variation and appeal legal expenses is $5,500, inclusive of disbursements and HST.

January 13, 2016

David Evans Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.