Emilios Panagiotou v. Wawanesa Mutual Insurance Company, 2017 ONFSCDRS 145

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 145

FSCO A16-000523

BETWEEN:

EMILIOS PANAGIOTOU

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Anne Morris

Heard:

In person at ADR Chambers on May 3, 2017

Appearances:

Mr. Tony Lafazanis for Mr. Emilios Panagiotou

Mr. Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Emilios Panagiotou, was injured in a motor vehicle accident on November 11, 2013 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Panagiotou, 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 Hearing are:²

Is Mr. Panagiotou entitled to a weekly Income Replacement Benefit at the rate of $400.00 from November 18, 2013 to date and ongoing, less any amounts already paid?
Is Mr. Panagiotou entitled to receive a Medical Benefit for:

a) $1,005.35, as a differential of OCF-18, dated July 29, 2014, as submitted by All Health;

b) $1,427.60, as a differential of OCF-18, dated October 2, 2014, as submitted by All Health;

c) $2,388.95 for OCF-18, dated September 6, 2014, as submitted by Chiromedics;

d) $2,925.00 for OCF-18, dated November 16, 2013, as submitted by Chiromedics?

Is Mr. Panagiotou entitled to payments for the cost of examinations in the amount of $727.88 as a differential for a psychological assessment, dated December 18, 2013?
Is Wawanesa liable to pay a Special Award because it unreasonably withheld or delayed payments to Mr. Panagiotou?
Is Mr. Panagiotou entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Arbitration?

Result:

Mr. Panagiotou’s claims against Wawanesa in this Arbitration are dismissed.
Wawanesa is entitled to its expenses of the Arbitration in the amount of $3,500.00, inclusive of HST and disbursements.

EVIDENCE AND ANALYSIS:

At the outset of the Hearing, the Applicant, Mr. Panagiotou, requested permission to withdraw the claims in this Arbitration. The Insurer, Wawanesa, did not consent to a withdrawal of the claims with or without terms, and sought a dismissal of the claims. The Applicant did not pursue his request for a withdrawal further, and the matter proceeded as a Hearing. The Applicant was in attendance but did not call evidence to support his claims. It is up to the Applicant to prove his claims, and since he did not provide supporting evidence, he did not discharge that burden of proof. His claims against Wawanesa in this Arbitration are therefore dismissed in their entirety.

EXPENSES:

Rule 75.2 of the Dispute Resolution Practice Code (“Code”), which sets out the criteria to be considered in awarding expenses, states the following:

The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These 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;

c. Whether novel issues are raised in the proceeding;

d. The conduct of a party or 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 Ontario Regulation 403/96 (Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42(10) of that regulation; and

g. Whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits – Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44(9) of that regulation.

Both parties made submissions on expenses. Mr. March, counsel for the Insurer, filed a Bill of Costs in the total incurred amount of $16,651.54. The alternative amount submitted, at the Legal Aid Rate, is $7,592.50. Both these amounts include HST, as well as disbursements in the amount of $1,048.59. Rule 78 of the Code limits the hourly rate to the applicable Legal Aid Rate.

I agree with Mr. March that the Insurer, as the successful party, is entitled to its expenses. Mr. March also submitted that the Applicant’s claims did not have merit as confirmed, in his submission, by the Applicant’s request to withdraw his claim and by the fact that the Applicant did not call evidence. Mr. Lafazanis, counsel for the Applicant, indicated that other considerations besides chances of success went into the withdrawal request and the decision not to call evidence, including a cost-benefit analysis. He indicated that he had forwarded an Offer to Settle the issues in dispute to the Insurer some weeks ago. He indicated that the Insurer did not respond to this Offer. He indicated that the Applicant is currently undergoing psychological treatment which is partially approved by the Insurer and is not an issue in dispute. Mr. March indicated that the Applicant was not credible and that there had been an overpayment of the Income Replacement Benefit. Mr. Lafazanis disagreed that the Applicant lacked credibility.

In my view, degree of success is the most relevant consideration with respect to expenses in this case. I do not find that the Applicant’s claims were improper or vexatious or that the conduct of either party delayed or obstructed the proceeding. I note that the Applicant sought to withdraw his claims but the request was not made, however, until the day before the Hearing, necessitating the attendance of both parties on the first day of the Hearing.

It is well established that the overriding consideration in fixing legal expenses is reasonableness.³ A line by line assessment of the expenses claimed is not required.⁴ The task involves taking a pragmatic, broad-strokes approach, with a view to fixing an amount that is reasonable.⁵ I also take into account Arbitrator Killoran’s comments in Reid and ING Insurance Company of Canada⁶ that:

The relationship between insurer and insured is a contractual one. The insured is entitled to access the dispute resolution process at FSCO as a result of that contract. The Insurance Act and its regulations must be interpreted in such a way as to uphold the protective and remedial nature of the legislation from which it flows.

In my view, the amount of $3,500.00 for expenses, inclusive of HST and disbursements, is a reasonable amount in the circumstances of this case. The Insurer is entitled to its expenses in this amount.

May 23, 2017

Anne Morris

Arbitrator

Date