Neutral Citation: 2018 ONFSCDRS 78 FSCO A16-004285

BETWEEN:

SAMANTHA BLACK Applicant

and

SECURITY NATIONAL INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Arbitrator Jeff Musson

Heard: Written submissions due on February 16, 2018

Appearances: Mr. Andrew Kerr for Samantha Black Mr. Derek Greenside for Security National Insurance Company

Issues:

The Applicant, Ms. Samantha Black (the "Applicant" or "Ms. Black"), was injured in an accident on February 1, 2013 and sought accident benefits from Security National Insurance Company (the "Insurer" or "Security National"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Black, 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.

I conducted the Hearing for this case, in person on June 21, 22, 23 and August 18, 21, 22, 2017.

At the Hearing, the Applicant attended and was represented by Mr. Kerr. In addition, Mr. Greenside, counsel representing Security National, attended.

On the issue of expenses, I ruled that if the parties were unable to mutually agree on expenses, then either party would be entitled to request an Expense Hearing, which Security National subsequently requested.

The issue in this Expense Hearing is:

What is the quantum that the Applicant is liable to pay with regards to the Insurer's expenses in respect of the Arbitration proceeding under section 282(11) of the Insurance Act as amended?

Result:

The Applicant is liable to pay to the Insurer its expenses in respect of the Arbitration proceeding, fixed in the amount of $30,967.21 (inclusive of fees, disbursements and HST).

EVIDENCE AND ANALYSIS:

Introduction

In this Expense Hearing, the Insurer is claiming expenses in the total amount of $30,967.21 including HST, which is comprised of $23,971.65 in fees at the legal aid rate and $6,995.56 in disbursements.

The Applicant was requested to submit her position in regards to expenses in this case by February 16, 2018. No documents were filed with the Commission by this deadline. Further, the Applicant's counsel requested an extension from the original deadline for submissions of February 5, 2018 which was granted. No response was received. As a result, I have decided that the Applicant was given ample time in which to respond and, having not received a response, I will proceed to make a decision based on the materials submitted by the Insurer.

Rule 79.1 of the Dispute Resolution Practice Code ("DRPC") states that where an arbitrator has determined all issues in dispute except expenses, and the parties cannot agree on entitlement or amount of expenses, either party may request, in writing, an Expense Hearing within 30 days from the date of the decision on all other issues in dispute. Both parties were prepared, absent an agreement as to expenses, to have the matter determined by me. My jurisdiction to conduct an Expense Hearing is set out in subsection 282(11) of the Insurance Act as amended.²

In addition, an arbitrator shall, under Rule 75.2 of the DRPC, consider only the following six (6) 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 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.

Entitlement to Expenses

Degree of Success

In its submissions, the Insurer stated that it was 100% successful in defending all of the issues that were in dispute at the Hearing. In addition, there was no ambiguity in terms of its success in this matter. I agree with the Insurer's position that it was the successful party at the Arbitration based on the rendering of my decision. There were three issues that were in dispute and the Applicant failed to prove entitlement for any of the issues.

Written Offers to Settle

Prior to the start of the Hearing, the Applicant offered to settle the income replacement benefits for $140,000. The Insurer offered to settle this claim for $5,000 and offered an additional $15,000 to settle the claim on a full and final basis. The Applicant rejected this offer and instead proceeded to an Arbitration Hearing.

Whether Novel Issues were raised in the Proceeding

There was no evidence submitted at the Expense Hearing related to novel issues being raised.

Conduct of the Parties and/or Their Representatives to Comply with Undertakings

There was no evidence submitted at the Expense Hearing as to the conduct of the parties related to undertakings.

Whether any Aspect of the Proceeding was Improper, Vexatious or Unnecessary

The Insurer stated that this Arbitration Hearing was unnecessary. As a result, the Insurer takes the position that the Applicant's claim, especially for a special award, was improper, vexatious and unnecessary. The Insurer also submitted two cases in support of its position, Sienna v. State Farm³ and Syrodoyer v. Ramandi et al.⁴ In both of these cases, the applicants, similar to the Applicant in the case heard before me, pursued a claim for benefits which in and of itself was determined to be without merit. In the case before me, the Insurer produced ample evidence which proved on the balance of probabilities that the Applicant did not meet the definition of entitlement to income replacement benefits. Further, at the Hearing, the Applicant had a cavalier attitude towards the Insurer and this Commission as to why anyone should question her entitlement to this benefit. Finally, as was noted in my decision, the evidence showed that she was operating a business at the same time that she was claiming post-104 income replacement benefits:

However, the Applicant's case was doomed the moment that she admitted that she has been operating a business at a fixed address during the period in which she was claiming post-104 IRBs. The Applicant was completely brazen in promoting this business and proceeded to leave a trail of evidence on YouTube, Facebook and her website which shows that she fails to meet the test for entitlement to post-104 IRBs.

Knowing these facts to be true in most circumstances would bring an individual to a sobering second thought as to the probabilities of success in pursuing a claim for benefits at an arbitration hearing. For the Applicant, this did not happen.

CONCLUSION:

This was not an overly complex case but at the same time, it was not a simple case either. The Applicant's lack of credibility required a rigorous defense by the Insurer in order prove the Applicant's evidence suffered from a profound lack of truth. The Insurer had to defend against a claim not knowing what evidence would be produced, especially with the Applicant's claim for a special award. In the end, the onus is on the Applicant to prove her entitlement to benefits, which she failed to do.

The Insurer put forward the position that its expenses are within the established and well-accepted norms. Based on the evidence submitted, I would agree with this position. The Applicant failed to produce evidence to the contrary, so I will take the Applicant's lack of submissions on this matter as accepting of the Insurer's cost submissions.

Based on these factors, the Insurer submits that the expenses that it is claiming as a result of this Arbitration Hearing are appropriate and reasonable under the circumstances. In addition, they comply with the requirements of the Legal Aid Tariff. As a result, the Insurer claims that unless evidence is presented by the Applicant as to the unreasonableness of the Insurer's expenses, that it should be entitled to the full amount requested in the Bill of Costs, which is only a fraction of the full costs incurred by Insurer because it has been billed at the Legal Aid rate.

I am accepting the disbursement list as presented by the Insurer's counsel for the Hearing. All of the amounts claimed by the Insurer for the Hearing are within the maximum limits permitted under s. 4 of the Expense Regulation.

For all these reasons, I have determined that the Insurer is entitled to its expenses. After considering the complexity of this Arbitration Hearing, the applicable Legal Aid fee structure, written submissions (or the lack thereof), the supporting documentation filed, and using the amounts permitted under the Expense Regulation as guidance, I find it appropriate to fix the Insurer's expenses at $30,967.21 inclusive of all fees, disbursements and HST.

April 17, 2018

Jeff Musson Arbitrator

Date

Financial Services Commission of Ontario