Neutral Citation: 2017 ONFSCDRS 340 FSCO A14-005621 and A15-000354

BETWEEN:

MISHAL RAFI Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON EXPENSES

Before: Arbitrator Deborah C. Anschell

Heard: By written submissions dated October 20, 2017; October 30, 2017; and November 6, 2017

Appearances: Mr. Paul Barrafato for the Applicant Mr. Paul Belanger for the Insurer

Issues:

The Applicant, Ms. Mishal Rafi, was injured in two motor vehicle accidents, the first on May 12, 2012 and the second on October 2, 2012, and sought accident benefits from Aviva Canada Inc. (“Aviva”) payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Rafi, 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.

The Hearing took place in Hamilton on April 4, 5, 6 and May 10, 2017 and by written submissions completed on June 16, 2017.

The issues dealt with at the Hearing were the following:

Is Ms. Rafi entitled to receive non-earner benefits from November 12, 2013 to the date of the Hearing and ongoing?
Is Ms. Rafi entitled to the following medical benefits: i. $3,103.00 for chiropractic care submitted by Healthmedica, treatment plan dated May 19, 2012; ii. $1,918.58 for a psychological treatment plan by West Side Diagnostics, dated May 24, 2012; and iii. $3,130.00 for manipulation and exercise submitted by Heather Voisin dated October 9, 2012?
Is Ms. Rafi entitled to the following cost of examinations: i. $978.50 submitted by West Side Diagnostics dated June 4, 2012; ii. $1,300.25 submitted by West Side Diagnostics dated June 29, 2012 for an In-Home Assessment; iii. $1,705.22 for an ultrasound submitted by West Side Diagnostics in a treatment plan dated July 31, 2012; and iv. $1,950.00 submitted by West Side Diagnostics dated September 14, 2012 for a Chronic Pain Assessment?
Is Ms. Rafi entitled to interest on the amounts outstanding in accordance with the Schedule?
Is either party entitled to its expenses of the Hearing?

The result of the Hearing was as follows:

Ms. Rafi is not entitled to receive a non-earner benefit.
Ms. Rafi is not entitled to receive the medical benefits being claimed.
Ms. Rafi is not entitled to the cost of examinations being claimed.
Ms. Rafi is not entitled to interest for any overdue payments of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties are to request an appointment for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

The issue in this Expense Hearing is:

What is the amount of expenses that should be awarded to Aviva?

Result:

Aviva is entitled to its expenses in the amount of $17,755.18.

EVIDENCE AND ANALYSIS:

Under subsection 282(11) of the Insurance Act, (as reiterated in Rule 75.2 of the Dispute Resolution Practice Code (“DRPC”), an Arbitrator shall consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an Arbitration proceeding:

Each party’s degree of success in the outcome of the proceeding;
Any written Offers to Settle;
Whether novel issues are raised;
The conduct of a party or the party’s representative;
Whether any aspect of the proceeding was improper, vexatious or unnecessary.

Both parties provided detailed written submissions with respect to the issue of expenses. Mr. Belanger is seeking $26,996.97 in legal fees and disbursements, at Legal Aid Rates.

Mr. Belanger submitted that the Insurer was entirely successful on all issues and the Arbitrator found the Applicant’s evidence to be lacking in credibility. There were no written offers, and there were no novel issues in this claim.

Mr. Belanger submitted that the Applicant failed to provide her employment files from Winners and Marshalls, the unredacted records from Dr. Saeed and OHIP, taxes and the updated Humber College records. Further, the Applicant did not submit an OCF-3 despite numerous requests. Mr. Belanger submitted that the Applicant called no evidence with respect to most of the treatment plans and costs of examinations.

The conduct of the Applicant tended to obstruct, hinder and delay the hearing process. The Applicant took almost three years to prosecute the claims contained within this proceeding. Mr. Belanger’s position is that the entire arbitration of this matter was improper and unnecessary. In sum, Mr. Belanger concluded that given the degree of success obtained by the Insurer, the lack of any settlement offers from the Applicant, the lack of any novel issues and the delay on the part of the Applicant, that expenses should be awarded to the Insurer in the amount of $26,996.97.

In response, Mr. Barrafato submitted that insurance legislation is consumer protection legislation. Further, Ms. Rafi provided her evidence in a straightforward and direct manner. Mr. Barrafato argued that any delay in prosecuting this claim was as a result of the Insurer’s aggressive and cumbersome approach to the file, including numerous assessments and denial of benefits. Some of the delay was caused in part by a change in counsel representing the Insurer.

Mr. Barrafato also submitted that both sides were justified in believing they had a triable case for arbitration. The Applicant is a student with limited means and resources. Thus, Mr. Barrafato concluded that each party should bear their own expenses of this Hearing.

I am not convinced that there is anything in this case that would cause me to depart from the general rule of ordering expenses to the successful party. The Insurer was entirely successful with its response to Ms. Rafi’s application for benefits. There were no novel issues, and no offers to settle. I am not satisfied based on the submissions provided that any part of the proceeding was improper, vexatious or unnecessary. Based on the submissions, I do not find that the conduct of either representative prolonged or hindered this matter.

I agree with Mr. Belanger’s Reply Submission that the resources of the Applicant are not a factor to be considered. Furthermore, there was no evidence put forth to support this submission by Mr. Barrafato.

I have considered the draft Bill of Costs prepared by the Insurer, together with the docket statements. I agree with Mr. Barrafato that the time posted seems somewhat excessive for a four-day Hearing, particularly with respect to the expenses sought for the time spent by Mr. Schmidt and the articling student.

The total time sought for reimbursement is 227.60 hours. This is equivalent to more than twenty-eight full days. Even accepting a 2:1 ratio for time spent in preparation, when compared to the length of the Hearing, a four-day Hearing should only translate into a total of 12 full days, or less than 100 hours. On this basis and taking into account that a multitude of lawyers were working on this file, I am reducing the time of Mr. Schmidt by half, and eliminating the time spent by the articling student in its entirety.

This results in total time spent of 116.15 hours or 14.51 full days. This is more commensurate with preparation time required for a four-day Hearing. The dollar amount for this reduced time corresponds to $14,919.74. Total fees and disbursements with HST are thereby reduced to $17,755.18.

EXPENSES:

Total expenses inclusive of fees and disbursements are $17,755.18.

December 29, 2017

Deborah C. Anschell Arbitrator

Financial Services Commission of Ontario