Jose Arana Retana v. Coachman Insurance Company, 2020 ONFSCDRS 16

Neutral Citation: 2020 ONFSCDRS 16

A14-000966 and A14-001618

BETWEEN:

JOSE ARANA RETANA Applicant

and

COACHMAN INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: David Evans Heard: By teleconference on June 24, 2020

Appearances: No one appeared for Mr. Jose Arana Retana Mr. Harry Brown for Coachman Insurance Company

Issues:

The Applicant, Jose Arana Retana, was injured in motor vehicle accidents on July 24, 2011 and August 26, 2012. He applied for and received some statutory accident benefits from Coachman Insurance Company (Coachman), payable under the Schedule.¹ Coachman did not approve most of the benefits sought by Mr. Retana. The parties were unable to resolve their disputes through mediation, and Mr. Retana applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In a decision dated February 24, 2020, Arbitrator Sone dismissed Mr. Retana’s claims for non-earner and attendant care benefits and various medical benefits and costs of examination as a result of the motor vehicle accidents of July 24, 2011 and August 26, 2012, as well as his claim for a special award, while reserving on the issues of expenses.

According to the Affidavit of Mr. Gary Mazin dated April 22, 2020, Coachman served its Bill of Costs in the amount of $41,950.81, which Mr. Mazin then forwarded to Mr. Retana along with the Arbitrator’s decision on February 28, 2020 and again on April 9, 2020. Mr. Retana eventually informed Mr. Mazin that he no longer wished Mazin & Associates to represent him. Mr. Mazin then brought a motion to be allowed to withdraw.

In a decision on a motion dated June 22, 2020, I allowed Mr. Gary Mazin of Mazin & Associates Professional Corporation to withdraw as representative for Mr. Jose Arana Retana. As set out in that decision, we have not been able to reach Mr. Retana when it was incumbent on him to keep us advised of his current address and telephone numbers. Accordingly, as in that case, this matter is proceeding without any further input from him.

The issue in this hearing is:

Is Coachman Insurance Company entitled to expenses incurred in respect of this arbitration hearing, and if so, in what amount?

Result:

Mr. Jose Arana Retana shall pay to Coachman Insurance Company its legal expenses incurred in respect of this arbitration in the amount of $24,750, inclusive of fees, disbursements and H.S.T.

EVIDENCE AND ANALYSIS:

Since Coachman Insurance Company was entirely successful in its defence of the claim, it is entitled to its legal arbitration expenses.

With respect to legal fees, the overriding consideration in fixing them is reasonableness. The hearing took place over six days, namely October 16‑18, 2017, and January 22‑24, 2018, with final submissions received on September 27, 2019.

The decision of Arbitrator Sone runs to almost 40 pages. However, she provided a useful overview at the beginning of the decision as follows:

In 2002, Mr. Retana had a serious workplace accident that rendered him very much impaired. As a result, he suffered from severe physical and psychological impairments before the motor vehicle accidents in 2011 and 2012.

There was no significant decline in Mr. Retana’s status or functioning following the motor vehicle accidents. Post-accident medical documents such as the ambulance report, St. Joseph’s Health Centre reports and University Health Network (UHN) records confirm that Mr. Retana’s functioning was not materially affected by the motor vehicle accidents.

Extensive surveillance evidence in 2015 and 2017 shows Mr. Retana shopping, socializing and performing outdoor chores on a sustained basis. Due mainly to this surveillance, and the fact that it was not provided to his assessors and service providers, I have found that Mr. Retana’s evidence is not credible and that his medical evidence is unreliable. Mr. Retana’s claims for accident benefits also do not pass the ‘but for’ causation test.

As a result, he has not proven on a balance of probabilities that he is entitled to the non-earner, attendant care, medical and cost of examination benefits that he has claimed.

There are claims for extra submissions. Arbitrator Sone had initially received submissions on causation, but after the Divisional Court released its decision in Sabadash v. State Farm Mutual Automobile Insurance Company, 2019 ONSC 1121, she gave the parties an opportunity to make additional submissions regarding causation.

Arbitrator Makepeace confirmed in Henri and Allstate Insurance Company of Canada² that a line-by-line assessment of the expenses claimed is not appropriate. Rather, the Arbitrator should make a global assessment of reasonable expenses. As a rule of thumb, Arbitrators have allowed expenses for preparation for hearing time