Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2018 ONFSCDRS 26
Appeal P16-00065
OFFICE OF THE DIRECTOR OF ARBITRATIONS
SHEM WHITTAKER
Appellant
and
AVIVA CANADA INC.
Respondent
BEFORE:
David Evans
REPRESENTATIVES:
Kwaku Bona for Mr. Whittaker
Candace Mak for Aviva Canada Inc.
HEARING DATE:
On the record, by submissions received by October 17, 2017
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:
- Shem Whittaker shall pay Aviva Canada Inc. its legal expenses of the appeal proceedings herein, fixed at the amount of $1,513.94, inclusive of disbursements and HST.
February 1, 2018
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
In a decision dated June 5, 2017, I dismissed the appeal of the July 27, 2016, of Arbitrator Shapiro. In a written decision, he had dismissed Mr. Whittaker’s claim for an income replacement benefit under the 2010 SABS.1 He found that since Mr. Whittaker had not produced or filed income tax returns for his pre-accident income, and s. 4(5) of the SABS precludes calculating IRBs on the basis of unreported income, any possible IRB would have a quantum of zero, so pursuing the claim to an arbitration hearing was an abuse of process. He concluded that no IRBs were payable.
Mr. Whittaker appealed on the grounds that the Arbitrator erred in conducting a written hearing and that s. 4(5) does not apply to employees, so he was entitled to an oral hearing for a determination of his IRBs based on other documentation.
However, since I found the Arbitrator was correct in concluding that s. 4(5) applies to employees, and since Mr. Whittaker never filed income tax returns during the relevant period, it followed that nothing he could say at a hearing would alter the result, so the Arbitrator was also correct in finding there was no good reason for not conducting a written hearing.
Aviva now seeks its costs of the appeal in a total of $1,513.94.
II. BACKGROUND AND ANALYSIS
The parties do not dispute that Aviva is entitled to its appeal expenses, as it was successful on appeal.
The only dispute is about the amount of the expenses.
With respect to the legal fees, Mr. Whittaker submits that this was a straightforward appeal, wherein counsel for Aviva essentially duplicated her arguments from the preliminary issue hearing. He submits that the claimed 12.6 hours should be reduced to two hours.
However, counsel has already reduced the hours to 9.45 hours, and has correctly set out her Legal Aid rate. I find the amount of time claimed reasonable, as counsel did have to analyze and respond to Mr. Whittaker’s submissions in order to prepare Aviva’s submissions.
As to disbursements, while Mr. Whittaker initially objected to a photocopying charge of $138.80, in reply Aviva corrected the claimed charges to $50.20. The other charges are for process servers and couriers.
I find the entirety of Aviva’s claim for appeal expenses reasonable. Accordingly, I find that Mr. Whittaker shall pay Aviva its legal appeal expenses of $1,513.94.
February 1, 2018
David Evans Director’s Delegate
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.