Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 101

FSCO A13-004662

BETWEEN:

A.G.

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Jessica Kowalski

Heard: By written submissions received to August 4, 2016

Appearances: Nicole Corriero for A.G.

J. Claude Blouin for Wawanesa Mutual Insurance Company

Issues:

The Applicant, A.G., was injured in a motor vehicle accident on May 28, 2011. In a decision dated May 12, 2016, I dismissed his application for arbitration. Wawanesa seeks an order for its expenses.

In making an award of expenses, an arbitrator shall consider only the criteria set out in the Expense Regulation.¹

Those criteria are:

(a) each party’s degree of success in the outcome of the proceeding;

(b) any written offers to settle made in accordance with Rule 76;

(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;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary;

(f) whether the insured person refused or failed to submit to an examination as required under section 42 of the Schedule or refused or failed to provide any material required to be provided by subsection 42(10); and,

(g) whether the insured person refused or failed to submit to an examination as required under section 44 of the Schedule, or refused or failed to provide any material required to be provided under subsection 44(9).

The only criteria relevant to this arbitration are the insurer’s degree of success and whether novel issues were raised in the proceeding.

The insurer was wholly successful. I found that A.G. failed to prove that the 2011 accident caused an inability to perform the essential tasks of his pre-accident employment; a complete inability to do any work for which he was reasonably suited; or that his accident-related impairments fell outside of the MIG. I found that in a case that turned on credibility, A.G.’s testimony was unreliable and contradicted by the documents in evidence, including his family doctor’s records as well as his post-accident employment records.

With respect to novel issues, I agree with A.G. that the case was not factually or legally complex. However, at the time of the hearing, there was little guidance in the caselaw regarding the MIG.

Further, Wawanesa’s own reports were problematic. For example, Dr. Hunter’s orthopaedic assessment recommended a psychological assessment. The, psychological assessment, completed by Dr. Hope, deferred a diagnosis while opining that A.G. exaggerated his physical, psychological and cognitive difficulties, but also that certain of A.G.’s test scores had “not been well validated on relatively recent immigrants living in North America”, and that conclusions should not be drawn from his scores in isolation because of the unavailability of research within this population. An insurer functional abilities evaluation concluded that A.G. had restricted mobility and did not meet the strength requirements and positional demands of his pre-accident work (but that the test results could not be considered a valid representation of A.G.’s abilities because of what the author described as A.G.’s variable effort and invalid test results). There was also reference to depression and PTSD in A.G.’s family doctor’s records that were not clarified until his family doctor testified. Added to this pre-hearing landscape was the fact that A.G. was an unsophisticated applicant who had suffered longer than expected following a previous accident.

Considering all these factors as a whole, I am satisfied that this matter would not have resolved but for a hearing, and that both sides were reasonably justified in believing they had a triable, if not necessarily winnable, case for arbitration. As a result, I find that each party should bear its own expenses of the arbitration and I make no order for expenses.

April 5, 2017

Jessica Kowalski

Arbitrator

Date