Dispute Resolution Services
Services de règlement des différends
Neutral Citation: 2019 ONFSCDRS 37
Appeal P18-00032
OFFICE OF THE DIRECTOR OF ARBITRATIONS
RBC GENERAL INSURANCE COMPANY
Appellant
and
STALIN THIRUCHELVAM
Respondent
BEFORE:
David Evans
REPRESENTATIVES:
Darrell March and Paul Omeziri for RBC General Insurance Company
David S. Wilson for Mr. Stalin Thiruchelvam
HEARING DATE:
On the record with submissions received by May 3, 2019
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:
- Mr. Stalin Thiruchelvam shall pay to RBC General Insurance Company its legal appeal expenses of $1,500.00, inclusive of disbursements and HST.
July 31, 2019
David Evans Director’s Delegate
Date
REASONS FOR DECISION
RBC General Insurance Company appealed the decision of Arbitrator Barrington dated April 26, 2018, wherein she found Mr. Thiruchelvam was catastrophically impaired pursuant to the SABS‑2010.1 She also found he was entitled to payment of medical benefits and the cost of an examination, and awarded him $49,331.63 as legal expenses of the arbitration.
In my decision dated April 12, 2019, I found the Arbitrator failed to apply the “but for” test of causation in this case where Mr. Thiruchelvam had pre-existing conditions before the accident of September 4, 2013, and this was not a “material contribution to risk” case. Furthermore, she breached the principles of fundamental justice by failing to consider whether an adjournment was warranted when Mr. Thiruchelvam served a 90-page report 30 days before the start of the arbitration hearing. I also amended the Arbitrator’s order to award $43,796.00 in legal arbitration fees to RBC, payable by Mr. Thiruchelvam.
With respect to appeal expenses, I suggested “RBC determine a round figure forthwith, based on the kind of average figures we have awarded insurers in the past (but not including any transcript costs).” On that last point, I noted when dealing with the Arbitrator’s expense award that the expense claim of Mr. Thiruchelvam “totaled $47,297.63 (although that included $1551 for a partial transcript, and I have ordered several times that transcript costs are not recoverable as arbitration or appeal expenses)”: See for instance Yogesvaran and State Farm Mutual Automobile Insurance Company, (FSCO P17‑00086, October 5, 2018).
On April 23, 2019, RBC provided its rounded figure of $3,000 for its expenses.
However, later that same day it added a claim for disbursements of $7,309.19 – including $7,133.95 for transcripts.
First, the average figure for insurer appeal expenses includes disbursements. Second, I said in my decision that RBC should not claim transcript expenses.
This overreach inclines me to reduce the amount awarded.
However, I find that RBC is entitled to something for its appeal expenses. It was entirely successful. In particular, it was forced into the arbitration hearing despite a situation requiring an adjournment because it had no time to respond to Mr. Thiruchelvam’s 90-page report served 30 days before the start of the arbitration hearing. This alone required it to appeal.
Given the above, I find that an award of $1,500 inclusive of fees, disbursements and HST is appropriate.
July 31, 2019
David Evans Director’s Delegate
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.