Financial Services Commission of Ontario

Commission des services financiers de l'Ontario

Neutral Citation: 2018 ONFSCDRS 143

Appeal P16-00081

LYNDA FEDERICO Appellant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Respondent

BEFORE: Edward Lee

REPRESENTATIVES: David S. Wilson for Ms. Federico Jonathan Schrieder for State Farm

HEARING DATE: By written submission completed Sept. 13, 2018

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:

State Farm shall pay Ms. Federico her legal expenses in the amount of $2,250.00, inclusive of disbursements and HST.

Edward Lee Director's Delegate

October 1, 2018

REASONS FOR DECISION

I. BACKGROUND AND ANALYSIS

In an appeal decision dated May 30, 2018, I overturned Arbitrator Tanaka's order of October 3, 2016, in which the Arbitrator ruled that Ms. Federico was not entitled to a special award. I rescinded the Arbitrator's order in its entirety, and directed the matter back to be reheard before a different arbitrator.

Ms. Federico now seeks her legal expenses for the appeal proceeding. The parties provided written submissions in regard to expenses and no oral hearing for this issue was conducted. In this order, I have considered only the legal expenses related to my appeal hearing of March 28, 2018.

II. ENTITLEMENT TO LEGAL EXPENSES

I find Ms. Federico is entitled to her reasonable expenses for the appeal. Ms. Federico was entirely successful. There are no other relevant criteria to consider apart from Ms. Federico's complete success.¹

In its submissions, State Farm opposes some of the Appellant's claims for disbursements, given that receipts and other such supporting documentation were not provided for those items. I accept this argument of State Farm.

State Farm did not challenge the reasonableness of any other items, except to comment that the Appellant had made a similar appeal previously against the decision of Arbitrator Huberman. This is not quite accurate as the decision of Arbitration Huberman led to an appeal order of Delegate Evans, who sent the special award issue back to be decided by another arbitrator. Ultimately, this led to Arbitrator Tanaka's order. In this appeal before me, the Appellant was required to challenge many of the determinations of Arbitrator Tanaka, and these determinations differed from, and largely modified the findings of Arbitrator Huberman. The decision of Arbitrator Tanaka was complex and required a close examination and review for a successful rebuttal.

It is also trite now to say that a line-by-line assessment of expenses is not appropriate in these matters. Rather, a global assessment of reasonable expenses should be made. In assessing the reasonableness of appeal expenses, I am guided by the decisions of Delegate Rogers in Echelon and Gililand², and Delegate Blackman in Bains and RBC General Insurance Company.³

The Appellant has sought a total of $3,017.67 for fees, disbursements and HST. Deducting the approximately $135.00 for some unsubstantiated disbursements, and applying a reasonable, global assessment, I find it appropriate to award Ms. Federico the total sum of $2,250.00 for legal fees for the appeal, inclusive of disbursements and HST.