Dispute Resolution Services de Reglement Services des Differends

Neutral Citation: 2020 ONFSCDRS 5

A12-005384

BETWEEN:

LYNDA FEDERICO

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Isabel Stramwasser

Heard: Written submissions received by March 28, 2019 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David S. Wilson for Ms. Federico Jonathan Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Lynda Federico, was injured in a motor vehicle accident on December 22, 2007. Since that time, Ms. Federico has been involved in extensive litigation against her insurer, State Farm. She filed the within application for arbitration on September 14, 2012.

Arbitrator Marvin Huberman heard the arbitration and made a decision on January 6, 2015 on a number of issues, including a special award. This led to an appeal order of Director’s Delegate David Evans, who sent the special award issue back to be re-heard by another arbitrator. On October 3, 2016, Arbitrator Lynda Tanaka decided that Ms. Federico was not entitled to a special award. On May 30, 2018, Director’s Delegate Edward Lee rescinded Arbitrator Tanaka’s order in its entirety and ordered a re-hearing of Arbitrator Tanaka’s decision.

In her written submissions to Delegate Lee dated August 23, 2018, Ms. Federico requested the expenses of the hearing before Arbitrator Tanaka. Delegate Lee’s decision on expenses dated October 1, 2018 makes no mention of the claim for expenses of the Arbitrator’s hearing. Rather, Delegate Lee states, “In this order, I have considered only the legal expenses related to my appeal hearing of March 28, 2018” (Appeal P16-00081 at page 2).

Consequently, in October 2018, Ms. Federico sought a hearing of the expenses of the Tanaka hearing before another Arbitrator. By then, Arbitrator Tanaka was no longer conducting arbitrations for the Financial Services Commission of Ontario. Arbitrator Alan Mervin was assigned to hear the expenses of Arbitrator Tanaka’s hearing.

Arbitrator Mervin received the parties’ submissions. In particular:

On March 4, 2019, Ms. Federico advised that she would be relying on her submissions to Delegate Lee dated August 23, 2018.
On March 28, 2019, the insurer advised that it would rely on its submissions to Delegate Lee dated September 13, 2018.

Arbitrator Mervin passed away in summer 2019 before rendering a decision on the expenses of the Tanaka hearing. I was subsequently assigned to make this decision on expenses.

I reviewed the parties’ submissions and I also reviewed Arbitrator Tanaka’s decision of October 3, 2016. In her decision, Arbitrator Tanaka made the following orders:

The Applicant is not entitled to a special award pursuant to s.282(10) of the Insurance Act.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

The sole issue in this further hearing is the following:

Is Ms. Federico entitled to her expenses of the hearing before Arbitrator Tanaka that resulted in Arbitrator Tanaka’s decision of October 3, 2016?

Result:

Ms. Federico is not entitled to her expenses of the hearing before Arbitrator Tanaka that resulted in Arbitrator Tanaka’s decision of October 3, 2016.

REASONS:

Positions of the Parties

The case for Ms. Federico is that she is entitled to her expenses of the hearing because she was successful in the proceeding.

The case for State Farm is that the time is long past for requesting the expenses of the 2016 hearing. Ms. Federico failed to abide by Rule 79 of the Dispute Resolution Practice Code in that she failed to request in writing an appointment to determine expenses within 30 days of the decision.

Law

Rule 79.1 of the Dispute Resolution Practice Code provides that either party may request an expense hearing, provided that the request is made within 30 days of the decision:

Where an adjudicator has issued an order determining all issues in dispute except expenses, and the parties cannot agree on the entitlement to or amount of the expenses of the proceeding, either party may request, in writing, an appointment before an adjudicator to determine expenses provided that the request is made within 30 days from the date the decision on all other issues in dispute was issued.

Analysis

I am bound by Rule 79 of the Dispute Resolution Practice Code. A motion for an expense hearing must be brought within 30 days of the decision in question.

There is no dispute that Arbitrator Tanaka rendered her final decision on October 3, 2016.

There is also no dispute that Ms. Federico requested the expenses of the hearing before Arbitrator Tanaka on August 23, 2018.

Consequently, Ms. Federico exceeded the 30-day time limit to request the expenses of the Tanaka hearing.

CONCLUSION:

I conclude that Ms. Federico is out of time to request the expenses of the hearing that resulted in Arbitrator Tanaka’s October 3, 2016 decision. Accordingly, I dismiss Ms. Federico’s motion.

If the parties are unable to agree on the entitlement and quantum of expenses of this expense hearing, either party may request an appointment with me for determination of same, in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code and Subsection 282(11) of the Insurance Act.

March 12, 2020

Isabel Stramwasser Arbitrator

Date