Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 243

Appeal P15-00007

Appellant

and

Respondent

BEFORE:

Edward Lee

Alon Rooz for Mrs. Green

Tanya Zigomanis for Belair

HEARING DATE:

July 11, 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:

Belair Insurance Company Inc. shall pay Ms. Green its legal expenses of the appeal proceedings herein, fixed in the amount of $2,000.00, inclusive of disbursements, HST, and the preparation for this expense hearing.

September 19, 2017

Edward Lee Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

In a decision dated November 16, 2016, Delegate Feldman considered Ms. Green’s appeal of Arbitrator Richards’ order dated December 18, 2014. The appeal was allowed in part by Delegate Feldman who reserved on the issue of the expenses of the appeal. Subsequently, the parties were unable to agree on this issue, and an expense hearing was requested on December 5, 2016. The parties then filed written submissions and bills of costs. The expense hearing proceeded before me by way of telephone conference call.

II. BACKGROUND

The appeal heard by Director Delegate Feldman was limited in scope. The parameters of the appeal were set out at page 6 of his decision.

In this appeal, Ms. Green does not challenge the dismissal of her claims for attendant care benefits, housekeeping and home maintenance benefits or the cost of treatment at Osler.

The Appellant claims, however, that the Arbitrator did err in law in dismissing her claim for the following:

With respect to any treatment plan that was approved by Belair or that Belair failed to respond to within the ten business days (i.e., plans that are “deemed approved”):
(a) the costs associated with Osler performing any assessment necessary to complete the treatment plan (a total of $700.00);

(b) the costs associated with the completion of each treatment plan (a total of $643.48);

$1,074.74 for the cost of a follow-up in-home assessment by Dr. Shteynberg;
Interest on any benefits that are found to be owing to Ms. Green; and
A special award based upon any benefits that are found to be owing to Ms. Green.

Delegate Feldman allowed the appeal in part, ordering as follows:

(a) Paragraphs 2 and 5 of that order are revoked; and

(b) Paragraph 1 is rescinded and is replaced with the following:

Ms. Green is entitled to a medical benefit in the amount of $127.44 for services by Osler Rehabilitation.
The following outstanding issues are to be determined by an Arbitrator other than the one who issued the order of December 18, 2014:

a. whether Ms. Green is entitled to $1,074.74 for the cost of a follow-up in-home assessment recommended by Assessment Direct in an application dated March 2, 2010;

b. interest on overdue payment of benefits;

c. entitlement to and quantum of a special award; and

d. expenses of the arbitration proceeding.

This is the appeal hearing from which the parties now seek expenses.

III. ANALYSIS

Neither party was completely successful at the appeal. In its submissions, Belair argued that I should consider Ms. Green’s or Ms. Green’s representative’s conduct in my determination, because Belair had been “… forced to deal with multiple issues of process, including responding to vexatious, incomplete and amended submissions …,” as set out in paragraphs 2 to 24 of Belair’s submissions. In this regard, I considered the complicated history of this file, which was passed from Delegate Blackman to Delegate Feldman and finally to me.

I note Delegate Feldman also referenced the history of this appeal at page 8 of his decision. There he noted the appeal hearing had been adjourned by Delegate Blackman to allow the parties to make further written submissions on what might have been a new ground of appeal. Delegate Blackman ordered the Appellant to pay the Respondent $750.00 for “costs thrown away.”

At the expense hearing before me, the Appellant submitted that I should effectively quash this order for costs made by Delegate Blackman, but I am not inclined to do so. Further, I find that any consideration that might have been given to matters arising from the conduct of Ms. Green or her representative (in the awarding of expenses), has already been dealt with by Delegate Blackman.

I find no other relevant factors in determine entitlement to expenses. What remains is to consider the relative degree of success achieved by each of the parties at the appeal.

As mentioned, the scope of this appeal was limited. Ms. Green sought a determination that the arbitrator had erred in dismissing her claims for the following:

The costs associated with performing various assessments and completing various treatment plans. The total of these claims was $1,343.48.
The cost of a follow-up in-home assessment in the amount of $1,074.74.
Interest on benefits found to be owing to Ms. Green.
A special award upon any benefits that are found to be owing to Ms. Green.

Both sides were partially successful in regard to the assessment and treatment plans. Delegate Feldman partially overturned the arbitrator’s order and determined that Ms. Green was entitled to $127.44 out of a possible $1,343.48.

Ms. Green was entirely successful in overturning the arbitrator’s decision denying her the cost of an-in-home assessment, although Delegate Feldman did not award that amount as he decided he was precluded from making the factual finding that the assessment had been incurred. He sent that issue back to be heard before another arbitrator.

Finally, the Director’s Delegate also ordered the issues of interest and special award to be heard before another arbitrator.

Overall, I find that Ms. Green had the greater degree of success in this matter and is entitled to expenses of the appeal.

III. EXPENSES

In its Bill of Costs, Belair seeks a total of $9.045.34 representing legal fees, disbursements and HST. This amount includes 67 hours for preparation and attendance, divided between various lawyers and students.

In its Bill of Costs, Ms. Green seeks a total of $6,389.40, representing legal fees, disbursements and HST. This amount includes 41 hours for preparation and attendance divided between various lawyers and students.

I find the appeal of this matter was fairly straightforward. Most of the analysis conducted by Delegate Feldman involved an examination of a single provision of the Schedule, and an analysis of a determination made by the arbitrator in regard to the in-home assessment.

It is trite to say that a line-by-line assessment of expenses is neither appropriate nor desirable. A global assessment of reasonable expenses should be made. In my assessment of reasonableness, I am guided by Delegate Blackman’s decision in Bains and RBC General insurance Company.¹ There he determined the average expense award to successful insurers was $2,812.91. For successful insureds, the average expense award was from $3,389.11 to $4,733.58.

I find that Belair shall pay Ms. Green $2,000.00 in appeal legal expenses, inclusive of disbursements, HST, and preparation for this appeal expense hearing.