Anastasiya Bakhtina v. Aviva Canada Inc., 2017 ONFSCDRS 217

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 217

FSCO A16-000664

BETWEEN:

ANASTASIYA BAKHTINA

Applicant

and

AVIVA CANADA INC.

Insurer

DECISION ON EXPENSES

Before:

Arbitrator Kimberly Parish

Heard:

By written submissions completed by the Insurer on April 28, 2017. No written submissions were received from the Applicant on June 9, 2017.

Appearances:

Ms. Anastasiya Bakhtina did not participate

Ms. Amanda Lo Cicero, Lawyer, participated for Aviva Canada Inc.

Issues:

The Applicant, Ms. Anastasiya Bakhtina, was injured in a motor vehicle accident on June 16, 2014 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹

Arbitrator Dymond dismissed Ms. Bakhtina’s Application for Arbitration by Order, dated November 28, 2016. No submissions on expenses were made at the time of the Order. Aviva subsequently requested an Expense Hearing in accordance with the provisions of Rule 79 of the Dispute Resolution Practice Code (“DRPC”).

The issue in this Expense Hearing is:

Is Aviva entitled to expenses incurred with respect to the Arbitration and, if so, in what amount?

Result:

Aviva is entitled to expenses incurred with respect to this Arbitration in the amount of $1,000.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in the case was held on September 20, 2016 at 3:00 pm, by telephone conference arranged by ADR Chambers, and was conducted by Arbitrator Dymond. The Applicant failed to participate.

A letter, dated September 21, 2016, was sent by Arbitrator Dymond to the Applicant’s last-known address which advised her of the missed Pre-Hearing discussion. The letter also provided the Applicant with an Attendance Notice, setting a date of November 2, 2016 at 3:00 pm, via teleconference, to hear the issues identified in the Application for Arbitration.

As of November 2, 2016, the Applicant had not contacted ADR Chambers, and had not participated in any of the Arbitration proceedings.

Pursuant to Rule 37.7 of the DRPC, the Hearing of November 2, 2016 proceeded in the Applicant’s absence.

The Applicant’s Application for Arbitration was dismissed, and a Decision and Order were issued by Arbitrator Dymond, dated November 28, 2016.

An e-mail was received by ADR Chambers on January 31, 2017, which included cost submissions from the Insurer’s counsel, Ms. Amanda Lo Cicero of Zarek, Taylor, Grossman, Hanrahan LLP, who had assumed carriage of this file from Ms. Soni Bal.

Arbitrator Dymond issued a letter dated February 1, 2017 by registered mail to the Applicant and copied the Insurer. The Applicant was advised in that letter that she could provide a written response to the Insurer’s cost submissions by March 3, 2017.

Arbitrator Dymond issued a letter, dated May 9, 2017, to the Applicant by registered mail, and copied the Insurer. Arbitrator Dymond allowed for an extension of the cost submissions as the Insurer had difficulty serving its submissions on the Applicant. Arbitrator Dymond further referred to an Affidavit of Service of Leo Perriera, dated April 25, 2017, and indicated this satisfied that service obligations were met. The letter allowed the Applicant to provide a written response to the Insurer’s cost submissions by June 9, 2017.

No response was received from the Applicant.

The Insurer’s Submissions for Expenses

The Insurer sought an award for expenses in the amount of $6,669.17, inclusive of HST. A Bill of Costs was provided which included 55 hours for fees in the amount of $5,719.49 plus HST, and $206.15 for disbursements ($50.75 for clinical notes and records and $155.50 for traveling time to attend an Examination Under Oath).

The Application for Arbitration, dated January 25, 2016, noted the following issues in dispute: one treatment plan for a medical benefit in the amount of $3,882.08, the Minor Injury Guideline, interest, and costs.

The Insurer submitted that the amount sought for costs was entirely reasonable as it attended an Examination Under Oath that the Applicant only partially attended, and it prepared for and attended two arbitral proceedings. The Insurer further stated, “they had no reason to believe that the Applicant would fail to participate and was obliged to defend this matter in the normal course.”

The Law

Rule 75.2 of the DRPC 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 subsection (3).

(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 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.

(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 Schedule - 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.

The Insurer stated in its cost submissions that only criteria (a), (d), and (e) apply.

The Insurer referenced two cases in its cost submissions. In the case Vitalis and Intact Insurance Company,² Arbitrator Wilson dismissed the Applicant’s claim as the Applicant failed to participate in the Arbitration process, and ordered the Insurer was entitled to its reasonable expenses. No amount was ordered, but the Insurer was to file an expense summary within 30 days of the Order. In Nagalingam and State Farm Mutual Automobile Insurance Company,³ Arbitrator Wacyk dismissed the Applicant’s claim on a Motion as the Applicant had failed to participate in any stage of the Arbitration process, and awarded costs against the Applicant in the amount of $1,000.00.

Decision and Analysis

I find that criteria (a), (d) and (e) are applicable in this case. As the Applicant’s Application for Arbitration was dismissed, the Insurer was the successful party. The Applicant failed to attend both the Pre-Hearing and the Hearing. I agree with the Insurer that this prolonged the Arbitration process unnecessarily, which caused the Insurer to incur some costs to participate in the process the Applicant initiated.

Arbitrator Dymond’s Pre-Hearing letter, dated September 21, 2016, noted on page 2:

The Insurer has been advised not to prepare for a contested Hearing on this matter. [Emphasis mine]

In the event the Applicant attends on that date, with or without representation, the Hearing will not proceed and the appointment will be converted into a resumption of the Pre-Hearing discussion.

I find the Bill of Costs submitted by the Insurer to be excessive. The Insurer submitted 55 hours for fees. There was only one treatment plan in the amount of $3,882.08 disputed, and the Minor Injury Guideline. The Insurer was advised in Arbitrator Dymond’s letter, dated September 21, 2016, that it was not to prepare for a contested Hearing in this matter.

I find the total 50 page cost submissions the Insurer filed would have taken some time to prepare; but I find this was also excessive for an Expense Hearing involving an Applicant who appeared to have abandoned her claim.

I fix costs to be awarded to the Insurer in the amount of $1,000.00, inclusive of HST.

August 8, 2017

Kimberly Parish Arbitrator

Date