Amanda McCready v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 215

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 215

FSCO A15-006980

BETWEEN:

AMANDA MCCREADY Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Arbitrator Jeff Musson

Heard: Written submissions completed on June 29, 2017

Appearances: Mr. Gary Mazin, Lawyer, participated for Ms. Amanda McCready Mr. Jonathan Schrieder, Lawyer, participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Amanda McCready, was injured in a motor vehicle accident on March 26, 2011. There were numerous claims for accident benefits made against State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the SABS.¹ The parties were unable to resolve their disputes through mediation, and Ms. McCready, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

I conducted the Hearing for the issues in dispute on January 9-13 and February 1-3, 2017. I issued my written decision with reasons, dismissing all of the Applicant’s claims in the Arbitration. On the issue of expenses, I ruled that the Insurer was entitled to its expenses based on its complete success in the Arbitration, for reasons discussed further below. If the parties were unable to mutually agree on expenses, then either party would be entitled to request an Expense Hearing, which the Insurer subsequently requested.

The issue in this Expense Hearing is:

1. What is the quantum that the Applicant is liable to pay with regards to the Insurer’s expenses in respect of the Arbitration proceeding under section 282(11) of the Insurance Act?

Result:

1. The Applicant is liable to pay to the Insurer its expenses in respect of the Arbitration proceeding, fixed in the amount of $29,798.52 (inclusive of fees, disbursements and HST).

EVIDENCE AND ANALYSIS:

Introduction

In this Expense Hearing, the Insurer is claiming expenses in the total amount of $54,029.63 including HST, which is comprised of $35,658.08 in fees and $18,371.55 in disbursements.

Rule 79.1 of the Dispute Resolution Practice Code (“DRPC”) states that:

Where an adjudicator has issued an order determining all issues in dispute except expenses, and the parties cannot agree on the entitlement to or amount of the expenses of the proceeding, either party may request, in writing, an appointment before an adjudicator to determine expenses provided that the request is made within 30 days from the date the decision on all other issues in dispute was issued.

Both parties were prepared, absent an agreement as to expenses, to have the matter determined by me. My jurisdiction to conduct an Expense Hearing is set out in subsection 282(11) of the Insurance Act.²

In addition, an Arbitrator shall, under Rule 75.2 of the DRPC, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

(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 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