Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 318

Appeal P17-00040

OFFICE OF THE DIRECTOR OF ARBITRATIONS

PARALOGANATHAN NADESU Appellant

and

ZURICH INSURANCE COMPANY LTD. (COMMERCIAL BUSINESS) Respondent

BEFORE: Edward Lee

REPRESENTATIVES: David S. Wilson for Mr. Nadesu William M. Sproull for Zurich

HEARING DATE: October 16, 2017

APPEAL 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:

Zurich Insurance Company shall pay Mr. Nadesu $3,500.00 in appeal legal expenses, inclusive of disbursements, HST, and preparation for this appeal hearing.

November 28, 2017

Edward Lee Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This matter involves the SABS–1996.¹

In a decision dated October 7, 2017, Delegate Feldman considered Mr. Nadesu’s appeal of Arbitrator Rogers’ order of May 27, 2015. 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. The parties then filed written submissions and bills of costs. The expense hearing proceeded before me by way of teleconference.

II. BACKGROUND

The appeal heard by Delegate Feldman was limited in scope. Mr. Nadesu appealed the following components of the May 27, 2015 decision:

the dismissal of his claim for costs of Botox injections in the amount of $7,200.00;
the duration and amount of monthly attendant care benefits awarded to him.

Delegate Feldman allowed the appeal in part:

the dismissal of the claim for Botox injections was confirmed;
the duration of the attendant care benefits awarded to Mr. Nadesu was unchanged, but the monthly amount for attendant care was increased by $500.00.

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

III. ANALYSIS

Neither party was completely successful at the appeal. There were no written offers to settle and items d, e, and f of the Expense Regulation² were not relevant. The factor I need most consider in my determination is each party’s degree of success in the proceeding.

At the appeal, the Appellant was unsuccessful in reversing the Arbitrator’s decision in regard to the cost of Botox treatment for $7,200.00, but was successful in partially overturning the Arbitrator’s decision in regard to attendant care, and increasing the monthly payment of attendant care by $500.00. Delegate Feldman allowed the appeal in this manner:

Zurich shall pay Mr. Nadesu monthly attendant care benefits as follows:

$730.50 from April 4, 2006 through February 13, 2007;

$730.50 from April 1, 2007 through May 4, 2007;

$730.50 from May 17, 2007 through January 8, 2008;

$730.50 from January 22, 2008 through October 30, 2009;

$730.50 from November 1, 2009 onwards.³

The increase in attendant care by $500.00 per month in each of the pay periods is significant. I find the Appellant had the greater degree of success at the appeal. There was also some suggestion from the parties that the examination of the criteria for attendant care amounted to a somewhat novel issue being raised in the arbitration proceeding. If it were such, I would find this factor would also support the Appellant’s claim for expenses.

Mr. Nadesu is entitled to the expenses of the appeal.

IV. EXPENSES

In its Bill of Costs, Mr. Nadesu seeks a total of $4,788.38, representing legal fees, disbursements, and HST. This amount includes 28.25 hours for preparation and attendance.

In its Bill of Costs, Zurich seeks a total of $8,813.97, representing $7,761.17 in legal fees and $43.85 for disbursements and $1,008.95 for HST.

It is trite to say 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.⁴ 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.

Bearing in mind the factors I have considered, I find Zurich shall pay Mr. Nadesu $3,500.00 in appeal legal expenses, inclusive of disbursements, HST, and preparation for this appeal hearing.