Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2018 ONFSCDRS 30
Appeal P17-00008
OFFICE OF THE DIRECTOR OF ARBITRATIONS
SUZANNE CLANCY
Appellant
and
AVIVA CANADA INC.
Respondent
BEFORE:
Delegate Jeffrey Rogers
REPRESENTATIVES:
Mr. Ammar Hussein, solicitor for Ms. Clancy
Ms. Frances Shapiro, solicitor for Munn for Aviva
HEARING DATE:
Heard by written submissions, completed on January 19, 2018
APPEAL 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:
- Ms. Clancy shall pay Aviva its expenses of this appeal in the amount of $3,500, inclusive of HST.
February 5, 2018
Jeffrey Rogers Director’s Delegate
Date
REASONS FOR DECISION
I. BACKGROUND
In a decision dated October 19, 2017, I dismissed Ms. Clancy’s appeal of the Arbitrator’s order. I found that the Arbitrator correctly ruled that she is precluded from proceeding to arbitration for failure to attend insurer examinations. I reserved my decision on expenses of the appeal. Aviva now seeks its expenses.
II. ANALYSIS
Aviva claims expenses in the amount of $3,912.76, inclusive of fees, disbursements and HST.
This amount includes $447.38 for fees and HST relating to services after the appeal hearing, including preparation of the Bill of Costs and cost submissions.
Section 12(2) of the Expense Regulation1 and Rule 75.2 set out 7 criteria to be considered in awarding expenses:
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 as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused 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.
The Regulation and the Rule state that these are the only criteria to be considered.
Aviva submits that it is entitled to its expenses, and that the relevant criteria are its complete success in the appeal and the fact that Ms. Clancy’s counsel unnecessarily prolonged both the appeal hearing and the process for establishing the expense hearing. Ms. Clancy submits that other factors weigh in favour of no expenses being awarded. They are: proportionality, access to justice and the fact that it was counsel for Aviva who prolonged the post-hearing process and not her counsel. I reject Ms. Clancy’s submissions.
Ms. Clancy launched an appeal of the Arbitrator’s order which proved entirely unsuccessful. I noted her representative’s conduct that tended to prolong the appeal hearing in my decision of October 19, 2017:
The pattern continued, with counsel refusing to address the questions I raised, alleging bias instead, making unrelated submissions, and refusing to stop when instructed to do so. I threatened to re-schedule the hearing to an in-person appearance, assuming that it would be easier to control counsel in that setting. I decided against this approach when counsel for Aviva pointed out that Aviva would be prejudiced by the additional cost of attending in person. I decided instead to depart from my usual practice and to allow counsel to make submissions as he saw fit. I informed him that what he saw as bias was my seeking clarification, the very purpose of the hearing. I asked him to tell me how much time he required. He refused. In the end, counsel for Ms. Clancy was allowed to make his oral submissions, with no time limit. He mostly read his written submissions. I stopped him only when he became overly repetitious.2
In my view, the post-hearing correspondence shows that it was counsel for Ms. Clancy who complicated the process for setting up the expense hearing, and not counsel for Aviva. Counsel for Ms. Clancy apparently did understand that the decisions on arbitration expenses and appeal expenses are separate matters. He therefore believed that decisions being made about arbitration expenses were binding on the appeal process. He accused counsel for Aviva of appealing the decisions about arbitration expenses when she sought a separate hearing on appeal expenses. He questioned my jurisdiction to hold an expense hearing, and he sought a stay pending a judicial review that was never launched.
I give no weight to Ms. Clancy’s submissions regarding proportionality and access to justice. The enumerated criteria are legislated to be the only relevant ones. The listed criteria include access to justice considerations in the “novel issue” criterion. In my view, that leaves no room for general consideration of access to justice, except in interpreting the listed criteria. Ms. Clancy’s submission is not based upon interpreting any of the listed criteria. Even if general access to justice considerations were relevant, they would carry less weight on appeals since the unsuccessful insured has already received a full hearing at the arbitration stage. Proportionality would normally be given weight in determining the quantum of expenses, but the disregard for an economical process by counsel for Ms. Clancy, counterbalances that consideration.
I find that Aviva is entitled to its reasonable expenses of the appeal. It is now trite to say that a line-by-line assessment of expenses is not appropriate. Rather, a global assessment of reasonable expenses should be made. In assessing reasonableness, I am guided by Delegate Blackman’s review in Bains and RBC General Insurance Company.3 He found that the average expense award to successful insurers was $2,812.91. Considering that rates for counsel have increased since Bains, that this appeal involved an oral hearing and that Ms. Clancy’s representative unnecessarily prolonged the process, I find that $3,500 is reasonable for Aviva’s appeal expenses, inclusive of disbursements and HST.
February 5, 2018
Jeffrey Rogers Director’s Delegate
Date