State Farm Mutual Automobile Insurance Company v. Joseph Asamoah, 2017 ONFSCDRS 179

Commission des services financiers de l'Ontario

Neutral Citation: 2017 ONFSCDRS 179

Appeal P16-00067

Appellant/Respondent

and

Respondent/Appellant

BEFORE:

Delegate Jeffrey Rogers

Mr. Darrell March and Mr. Paul Omeziri, solicitors for State Farm

Mr. Richard Levin, solicitor for Mr. Asamoah

On the record, by written submissions, completed on June 19, 2017

APPEAL EXPENSES 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:

The parties shall bear their own expenses of the appeal and cross-appeal.

June 26, 2017

Jeffrey Rogers Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Both parties appealed the Arbitrator's decision of August 2, 2016. State Farm sought reversal of the Arbitrator's decision to award Mr. Asamoah income replacement benefits (IRBs), medical and rehabilitation benefits (med/rehab), attendant care benefits (ACBs), housekeeping and home maintenance benefits (HK), and the cost of examinations or assessments. Mr. Asamoah sought to rescind the Arbitrator's dismissal of his claim for a special award and the Arbitrator's limiting the period of his entitlement to IRBs and ACBs.

In a decision dated March 21, 2017, I rescinded the Arbitrator's order, except where he ordered State Farm to pay Mr. Asamoah IRBs at the rate of $400 per week, from November 24, 2011 to November 24, 2012. I remitted the issues of Mr. Asamoah's entitlement to further IRBs and all other issues in the arbitration for re-hearing by a different Arbitrator.

Both parties now seek their legal expenses of the appeal.

II. ANALYSIS

The parties enjoyed mixed success in the appeal. Each claims entitlement to be awarded legal expenses based upon greater success. I am unable to attach significantly greater weight to the result for either party. I find success to be the only relevant criterion to the award of expenses. I therefore conclude that the parties should bear their own expenses.

There are many factors relevant to weighing success. They include the number of issues, the amount of money at stake, the time spent on the issues, the reasons for success, and the role of the unsuccessful party in requiring the successful party to pursue an appeal.

There was mixed success in State Farm's appeal. State Farm was successful in rescinding the Arbitrator's order regarding most of the benefits, but that was principally because the Arbitrator did not provide adequate reasons. It could be argued that Mr. Asamoah had no control over this flaw in the Arbitrator's decision. However, The Arbitrator's decision contained obvious flaws. Despite what he now says, Mr. Asamoah did not concede that the flawed aspects of the order should be rescinded. He argued for maintaining the award of medical benefits, ACBs and HK.

State Farm was not successful in rescinding the Arbitrator's award of IRBs. That was the most significant monetary award and it was the issue that consumed the most time in the appeal.

There was mixed success in Mr. Asamoah's appeal. He was successful in obtaining reconsideration of his claim for further IRBs and for a special award. He was not successful in his claim for further ACBs and he was not successful in obtaining an order for payment of further IRBs and a special award.

Both parties vigorously pursued their positions in the appeals. I do not find that their conduct tended to "prolong, obstruct of hinder the proceeding", within the meaning of Rule 75(d). That provision addresses improper conduct, not unsuccessful positions, as occurred here.

No other factors are relevant. I am unable to conclude that either party enjoyed the greater degree of success that would warrant an award of expenses. I therefore find that the parties should bear their own expenses of the appeals.

June 26, 2017

Jeffrey Rogers Director's Delegate

Date