Neutral Citation: 2017 ONFSCDRS 46 FSCO A14-004838

BETWEEN:

REEMA MARYAM Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Arbitrator Harvey Savage

Heard: By written submissions completed December 2, 2016

Appearances: Mr. Francesco Blasi, Paralegal, participated for Mrs. Reema Maryam Mr. Paul Omeziri, Lawyer, participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mrs. Reema Maryam, was injured in a motor vehicle accident on December 26, 2012 and sought accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Maryam, 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 proceeded before me on May 26 and 27, 2016.

I released my decision on September 26, 2016 and I dismissed the Applicant's claims. I noted in my decision that the Applicant had not met her burden of proof through sufficiently credible evidence that her injuries fell outside the Minor Injury Guideline or that the proposed treatment plans were reasonable and necessary.

I stated in my Order that if the parties were unable to agree on the amount of expenses of the proceeding, they were invited to make written submissions in accordance with Rule 79 of the Dispute Resolution Practice Code.

Counsel for the Insurer requested an Expense Hearing as the parties were unable to resolve the issue of expenses.

Both parties agreed to the proposal that submissions be conducted in writing, and timetables were set. These were complied with.

The issue in this Expense Hearing is:

Is the Applicant required to pay all or some of State Farm's legal expenses in respect of the Arbitration proceeding? If yes, what amount?

Result:

The Applicant is liable to pay the legal expenses of State Farm for the preparation of the Arbitration in the fixed amount of $5,000.00, inclusive of fees, disbursements and any applicable taxes.

EVIDENCE AND ANALYSIS:

The Insurer is seeking partial indemnity expenses under the FSCO guidelines in the total amount of $13,073.98 (inclusive of HST), comprised of $11,447.42 in fees and $138.00 in disbursements.

ENTITLEMENT TO EXPENSES

Subsection 282(11) of the Insurance Act provides as follows:

Expenses

(11) The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations. 1996, c. 21, s. 38 (4).

Regulation 664, R.R.O. 1990 provides:

(1) The expenses set out in the Schedule are prescribed for the purpose of subsection 282 (11) of the Act. R.R.O. 1990, Reg. 664, s.12.

(2) An arbitrator shall, under subsection 282 (11) of the Act, 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 made in accordance with subsection (3).

Whether novel issues are raised in the proceeding.

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.

Whether any aspect of the proceeding was improper, vexatious or unnecessary.

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.

Whether the insured person refused or failed to submit to an examination or failed to provide any material required to be provided under subsection 44 (9) of that regulation. O. Reg. 275/03, s. 4; O. Reg. 548/05, s. 1; O. Reg. 36/10, s. 2.

DETERMINATIVE ISSUES

I find that the determinative issues in this application are each party's degree of success and the brevity and lack of complexity of the Hearing.

Degree of Success

The Applicant's Application was dismissed, and as written in my decision, I had credibility concerns regarding the Applicant's testimony, some of which was inconsistent with statements she provided to assessors. Therefore, on this basis alone, the Insurer is entitled to at least some level of its expenses.

Brevity of Hearing and Degree of Complexity

The Paralegal for the Applicant correctly described the course of the Hearing: it began at 10:00a.m. on May 26, 2016 and adjourned at 1:00p.m., including a one hour lunch break. The Hearing then continued the following day at 10:00a.m. and concluded at 11:00a.m. The total Hearing time was therefore three hours, for which the Insurer claims 11.3 hours.

Counsel for the Insurer seeks to include submissions preparation time. The Insurer states that at the conclusion of the Hearing on May 26, 2016, he would have been prepared to make oral submissions. He further submits that he should be credited for the preparation as part of the Hearing time. That submission is not persuasive. I had already advised the parties I would not entertain oral submissions. In my view, this submission seeks only to inflate the time of a three-hour Hearing.

The issues were not complex, they were few, and no novel points were argued. Mr. Omeziri was not at the Hearing. He only came in at the written submissions level. The counsel for the Insurer at the Hearing was Mr. March, and only Mr. March can be awarded the Hearing time.

Total Expenses

Having considered all the relevant criteria in my assessment of the Bill of Costs and the maximum amounts permitted under the Expense Regulation, I find it appropriate to fix the Applicant's expenses at $5,000.00. This reflects my assessment of the parties' positions, inclusive of fees, disbursements and any applicable taxes.

EXPENSES:

For the reasons listed above, the Applicant shall pay the Insurer's expenses, fixed in the amount of $5,000.00, inclusive of fees, disbursements and any applicable taxes.

February 13, 2017

Harvey Savage Arbitrator

Financial Services Commission of Ontario