Shoba Kolapully v. TTC Insurance Company Limited, 2018 ONFSCDRS 113

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 113

FSCO A14-001178

BETWEEN:

SHOBA KOLAPULLY Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

EXPENSE DECISION

Before: Charles Matheson

Heard: By written submissions completed on May 31, 2018

Appearances: Ms. M. Dahab, lawyer for Ms. Kolapully Mr. C. Townsend lawyer, for TTC Insurance Company Limited

Issues:

The Applicant, Ms. Shoba Kolapully, was injured in a motor vehicle accident on March 6, 2012. She applied for and received statutory accident benefits from TTC Insurance Company Limited (“TTC”), payable under the Schedule.¹ TTC denied certain claims made by Ms. Kolapully. The parties were unable to resolve their disputes through mediation, and Ms. Kolapully, through her representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issue in this hearing is:

What amount of expenses is the Insurer liable to pay the Applicant?

Result:

The Insurer shall pay to the Applicant $38,000.00. This includes legal fees, disbursements, H.S.T., and expenses associated with this expense hearing.

Background

The Applicant was a pedestrian crossing at a pedestrian crossway and was struck by a TTC bus on her left side causing her to fall on her right side. The Applicant subsequently made claims for medical benefits, cost of examinations, and non-earners benefits that were denied by the Insurer.

An Arbitration hearing in this matter proceeded at ADR Chambers, commencing April 27, 2017 for one full day in front of Arbitrator Drory, and continuing for four further days from December 4, 2017 to December 7, 2017 before Arbitrator Louise Barrington.

On March 9, 2018, Arbitrator Barrington found and ordered the following:

a. Ms. Kolapully is entitled to receive a non-earner benefit at the rate of $185.00 per week for the period from November 20, 2012 to date, and ongoing;

b. Ms. Kolapully is entitled to receive a medical benefit in the amount of $4,090.61 for a treatment plan provided by Scarborough Physio dated June 21, 2012;

c. Ms. Kolapully is entitled to payment for the cost of examination for neuropsychological assessments provided by Dr. Gilman of Oshawa Physio in the amount of $6,827.76; and

d. Ms. Kolapully is entitled to interest for the overdue payment of benefits, calculated from the date each fell until September 6, 2016.

e. TTC is liable to pay Mrs. Kolapully’s reasonable expenses given her degree of success. In the event that the parties are unable to agree on the quantum of the expenses of this matter, pursuant to section 282(1) of the Insurance Act, the parties or one of them may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

The parties were unable to agree on the quantum of expenses owed to Ms. Kolapully with respect to the arbitration, and this expense hearing was subsequently requested.

Arguments

The Applicant argues that through the FSCO Dispute Resolution Practice Code² (the “Code”) Rule 78 and Section F of the Expense Regulation sets out what items should be considered and the amounts to be awarded by an arbitrator when making an expense hearing award.

The Applicant argues that entitlement to expenses is not in dispute for the purposes of this expense hearing, and as such, the only issue with respect to this expense hearing is determining the appropriate quantum of expenses.

In regards to the length of the hearing, the Applicant argues the arbitration hearing commenced on April 27, 2017 for a full day and continued for a further four full days on December 4, 2017 to December 7, 2017. On some days, the hearing began earlier than 9:00 a.m. and concluded later than 6:00 p.m. The total number of hours of the arbitration hearing is therefore at least 40 hours, with a further four hours of pre-hearings.

In regards to complexity of the case, the Applicant argues that a total of eight witnesses were called. Four witnesses, including two experts, were called on behalf of the Applicant, and four witnesses, including three experts, were called on behalf of the Insurer. The Insurer submitted an arbitration brief with three volumes and the Applicant submitted a supplementary arbitration brief with a further three volumes, with each volume comprised of approximately 400 pages. The Applicant was represented by one lawyer at the arbitration hearing, and the Insurer was represented by two lawyers. There was a total of four issues in dispute, with a further issue of special awards raised on the fourth day of the hearing. Other than the special awards issue, the hearing arbitrator found the Applicant successful on all issues in dispute.

The Applicant submits that the adjudication of the issue of special awards was limited to examination of the handling adjuster. The preparation and adjudication of the special award issue has not been included in the expenses submitted by the Applicant.

The relevant sections of the Expense Regulation found in Section F of the Code reads as follows:.

2 the adjudicator