Similarly, Wawanesa argued that Mrs. Colandrea’s refusal to talk settlement for five months prolonged the proceedings. While Wawanesa acknowledged that Mrs. Colandrea was undergoing medical assessments during those five months to support her removal from the MIG, it argued that Mrs. Colandrea could have asked Wawanesa if it had changed its MIG position during that time. Yet, Wawanesa did not disclose what its MIG position actually was during those five months. Furthermore, neither party provided detail about the medical evidence. For these reasons, I have insufficient evidence to assess the reasonableness of Mrs. Colandrea’s decision to postpone settlement discussions and, hence, whether it prolonged the proceedings.
In addition, Wawanesa argued that Mrs. Colandrea’s “accumulation of expert reports” was “entirely unnecessary” to the proceedings. It argued that the cost of those reports was “grossly disproportionate” to the value of the issues in dispute, but did not include in its valuation of the issues the removal of Mrs. Colandrea from the MIG. Taking her removal from the MIG into consideration, I do not find the cost of the reports to be “grossly disproportionate.”
Lastly, Wawanesa alleged that the Applicant used her medical reports in the tort claim. However, it did not support this allegation with evidence. Furthermore, Wawanesa did not say whether the Applicant was reimbursed for those reports in the other proceeding. In any event, this argument is irrelevant to the question of whether the reports were necessary for these arbitration proceedings. Absent evidence about the relevance of the Applicant’s expert reports to these proceedings, the insurance company’s argument that they were “entirely unnecessary” is unsubstantiated.
It follows that these factors are also neutral in this expense hearing.
(f) 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.
(g) 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.
I will consider factors (f) and (g) together.
While it is undisputed that Mrs. Colandrea refused to attend two insurer’s examinations, the insurer did not explain the relevance of her refusal to this expense hearing.
Wawanesa said that her refusal was “obstructionist,” but did not say how. Mrs. Colandrea stated, at the time that Wawanesa requested her attedance, that she considered the insurer’s examinations to be unwarranted or duplicative, but Wawanesa did not address this fact in its submissions. As a result, I am unable to assess whether the refusal to attend was reasonable.
Furthermore, Wawanesa did not say whether it had expended any resources as a result of Mrs. Colandrea’s failure to attend. The evidence before me does not support such a position. Rather, it suggests the opposite — that Mrs. Colandrea’s failure to attend two insurer’s examinations saved Wawanesa additional expenses in these proceedings.
While it may be the case that a failure to attend creates additional costs for an insurer in mounting a defence at arbitration, that does not appear to be the case here, where the matter settled before a hearing. The insurer did not meet the burden of proving its argument. Consequently, I am not persuaded that the bare fact of the Applicant’s refusal to attend supports an award of expenses to one party over another.
It follows that these criteria are neutral to my assessment
Having considered the seven criteria, I conclude that Mrs. Colandrea is entitled to an award of expenses.
