Neutral Citation: 1993 ONICDRG 52
File No. A-002340
ONTARIO INSURANCE COMMISSION
BETWEEN:
GLENN M. J. EPPS
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
The Applicant, Glenn Epps, was injured in a motor vehicle accident on August 11, 1991. He applied for and received accident benefits from the Insurer payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.
Weekly disability benefits were terminated by the Insurer on August 10, 1992. The Applicant applied for arbitration under the Insurance Act.
The arbitration hearing commenced December 8, 1992. On February 22, 1993, the parties obtained a Settlement Order and the Applicant executed a Full and Final Release, with respect to all issues in dispute, except:
The amount to be paid by the Insurer in respect of the proper expenses of the arbitration, including the amount to be paid to Raymond Flook, agent for the Applicant, in respect of his agent's fee.
The amount to be paid by the Insurer to F. Shahidi, Doctor of Chiropractic, in respect of outstanding chiropractic charges for treatment received by the Applicant between August 11, 1991 and February 22, 1993.
The Applicant represented himself in connection with the first issue. The Applicant retained legal counsel to represent him with respect to the second issue. Counsel for the Applicant advised the Ontario Insurance Commission ("Commission") of the Applicant's withdrawal of his claim against the Insurer with respect to the second issue.
Issues:
The sole outstanding issue for determination is:
The amount to be paid by the Insurer in respect of the proper expenses of the arbitration, including the amount to be paid to Raymond Flook, agent for the Applicant, in respect of his agent's fee.
Result:
The Applicant is entitled to his expenses incurred in respect of the arbitration as specifically allowed in this decision;
The Insurer is required to pay the Applicant the sum of $3,948.20 in respect of outstanding expenses claimed;
The Applicant is entitled to receive interest on overdue payments at the rate of 2 per cent per month, in accordance with section 24 of the No-Fault Benefits Schedule, calculated from the date of this decision.
Hearing:
Submissions with respect to expenses were made before me, Janice Mackintosh, arbitrator on April 19 and June 14, 1993.
Present at the Hearing:
Applicant:
Glenn M.J. Epps,
representing himself
April 19, June 14, 1993.
Brian A. Horowitz, Barrister and Solicitor, limited to the issue of the outstanding treatment fees of F. Shahidi, Doctor of Chiropractic,
Insurer's
Stephen M. Malach
Representative:
Barrister & Solicitor
Glenn Epps testified as to the expenses incurred in connection with the arbitration.
The proceedings were recorded by Chris A. Charles, C.V.R. Holley & Strauch, Court Reporters.
Documents before the Arbitrator:
Twelve exhibits were marked in connection with the issue of arbitration expenses. A complete list of documents before the arbitrator is contained in Schedule "A" to this decision.
Evidence and Findings:
The Applicant seeks reimbursement of miscellaneous arbitration expenses in the amount of $14,626.11, as well as $3,089.00 for expenses related to the attendance of medical witnesses at the hearing, $2,335.00 for expenses related to medical reports and records, and $921.00 for expenses related to the work of an accountant. The Insurer has paid, or agrees to pay, a small portion of the $20,971.11 total expenses claimed. For the reasons which follow, I conclude that the Applicant is entitled to the sum of $3,948.20 in respect of the outstanding expenses claimed, as summarized in the chart below:
Category of Expense
Amount of Expense Claimed
Amount of Expense Prev. paid by Insurer
Amount of Expense determined by Arbitrator
Amount of Expense Owing by Insurer
Miscellaneous Expenses Claimed in Exhibit A:
Service of Subpoenas
212.00
212.00
212.00
Filing Fee
50.00
50.00
50.00
Long Distance Calls
69.00
NIL
Withdrawn by Applicant
Agent's Fees of R. Flook
5,115.75
1,726.15
1,726.15
Verbatum Transcripts
4,280.00
NIL
Transportation Costs
2,575.00
48.00
48.00
Rental of laser printer
1,214.45
NIL
Clerical services J. Braithwaite
404.46
NIL
Photocopying, Stationery, Office Supplies
244.18
210.41
210.41
Entertainment Expense
217.78
NIL
Registered Mail and Purolator
164.99
146.64
146.64
Parking Receipts
76.50
55.00
55.00
SUBTOTAL
14,626.11
2,448.20
2,448.20
Category of Expense
Amount of Expense Claimed
Amount of Expense Prev. paid by Insurer
Amount of Expense determined by Arbitrator
Amount of Expense Owing by Insurer
Expenses related to Attendance of Witnesses:
Dr. Chow
650.00
650.00
650.00
PAID
Dr. Donskoy
2,439.00
600.00
600.00
SUBTOTAL
3,089.00
650.00
1,250.00
600.00
Expenses related to Medical Reports Records and Preparation, as set out in Exhibit J:
Report of Dr. Chow
640.00
630.00
630.00
PAID
Meeting between Dr. Donskoy & Agent
150.00
150.00
On Consent
150.00
Dr. Donskoy - Form 4 Report
115.00
50.00
50.00
PAID
Dr. Donskoy - 2½ page report
350.00
225.00
225.00
PAID
Dr. Donskoy - 1½ page report
250.00
50.00
50.00
Dr. Shahidi, Chiropractor
600.00
600.00
600.00
Dr. Maleki Vazdi - Form 4 Report
100.00
50.00
50.00
PAID
Dr. Wong - 1 page report
50.00
50.00
50.00
Hospital Records
80.00
NIL
SUBTOTAL
2,335.00
955.00
1,805.00
850.00
Expenses related to an Accountant:
5-Page Report
600.00
NIL
Summary marked Exhibit A
321.00
50.00
50.00
SUBTOTAL
921.00
NIL
50.00
50.00
TOTAL
20,971.11
1,605.00
5,553.20
3,948.20
An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses (hereafter referred to as "Schedule 1").
In the Settlement Order and Full and Final Release executed by the parties on February 22, 1993, the parties agreed that the Applicant is entitled to receive payment of proper expenses incurred in respect of the arbitration proceeding.
My decision is predicated upon the provisions of the Settlement Order and the Full and Final Release.
Miscellaneous Expenses summarized in Exhibit A:
Exhibit A records $212.00 for expenses related to the service of subpoenas by the Applicant in connection with the hearing and $50.00 for filing the application for arbitration. Counsel for the Insurer accepted these amounts.
Exhibit A records the sum of $69.00 for long distance telephone calls. The Applicant subsequently withdrew his claim for this expense.
The Applicant claims the sum of $5,115.75 in respect of fees charged by Raymond W. Flook for representing the Applicant in connection with the arbitration. Exhibit A incorrectly itemizes Mr. Flook's account as $6,099.00. Mr. Flook's detailed account is marked as Exhibit L’and records 234 hours and 15 minutes of time, calculated at the hourly rate of $23.00, less 5 per cent. The actual number of hours reflected in the account, rounded to the nearest hour, is 237 hours. The rate of $23.00 per hour less 5 per cent, charged by Mr. Flook, is roughly equivalent to the $23.00 hourly rate established under the Legal Aid Act for law clerks, referred to in section 3(2) of Schedule 1 as follows:
3 (2) The maximum amount that may be awarded for agent's fees is the amount calculated using the hourly rates established under the Legal Aid Act for law clerks, articling students and investigators.
No submissions were made concerning the agent's qualifications, training, and experience. Counsel for the Insurer made no submissions for a lower hourly rate than the one charged by the agent. I am satisfied that Mr. Flook's efforts reduced the time that would have otherwise been spent at the hearing. I find that the rate of $23.00 per hour less 5 per cent, charged by Mr. Flook, is appropriate, however, I find that the total number of hours claimed is excessive in view of the nature and complexity of the issues in dispute.
Section 2(1) of Schedule 1 to the Dispute Resolution Practice Code sets out three categories for which legal fees, payable by the Insured, may be awarded. These are:
For all services performed before a hearing.
For the preparation for an arbitration hearing.
For attendance at an arbitration hearing.
(emphasis added)
In contrast, section 3(1) of Schedule 1 sets out only the last two categories under which an agent's fees may be awarded. Clearly, it was the intention of the legislature to exclude an award for all services performed by an agent before a hearing and limit the award specifically to the agent's preparation time. The agent docketed approximately 164 hours of time prior to the commencement of the first day of hearing on December 8, 1992. Much of this time related to pick up and delivery of documents, review and preparation of correspondence on behalf of the Applicant, and attendances at Legal Aid offices, lawyers' offices and doctors' offices. These services are not strictly related to preparation for the hearing as required by Schedule 1. I award 28 of the 164 hours claimed, as specifically set out in the chart which follows.
The Applicant confirmed that approximately 5 per cent or approximately 8 of the 164 hours detailed in Exhibit L’relates to time spent mediating other issues in dispute between the parties. Specific references to mediation are found at October 23, 26, 30, and November 5, 1992 of Exhibit L. Unlike "expenses incurred in respect of an arbitration proceeding", there is no specific provision in the Insurance Act or its regulations pertaining to expenses incurred in respect of mediation at the Commission. It would have been an easy matter for the legislature to have expressly included such a reference. The omission of expenses related to mediation must be given some significance in the overall legislative scheme. I excluded this time when reducing the claim for 164 hours of preparation time prior to the hearing.
The Legal Aid Tariff Manual, prepared in accordance with the Legal Aid Act, its Regulations and Schedules, sets out certain time guidelines for awarding fees in non-block fee civil proceedings (excluding appeals). I found these time guidelines useful in analyzing the time set out in the agent's account. The times recorded by the agent in his account, marked as Exhibit L, are noted in the chart which follows. During cross-examination, the Applicant agreed that his agent's attendance at the hearing did not extend to 10 hours and 30 minutes as stated on the account. He explained that Mr. Flook included preparation time which occurred before the commencement of the hearing at 10:00 a.m. and subsequent to the end of the hearing at 5:00 or 6:00 p.m. In view of the number of days spent at the hearing, and the assistance given by Mr. Flook in saving time during the hearing, I awarded the preparation time as specifically set out in the chart below:
The last day of testimony in the hearing occurred February 10, 1993. Between February 13 and February 20, 1993, extensive settlement negotiations occurred between the parties. In my view, none of this time relates to preparation or attendance at the hearing. Therefore, I have allowed only the actual attendance time before me in connection with obtaining the settlement order.
Upon reviewing the detailed account prepared by Mr. Flook, I find that the Applicant is entitled to an award of expenses related to the services of his agent, in the amount of $1,726.15 which is equivalent to approximately 79 hours of the agent's time multiplied by his hourly rate of $23.00 less 5 per cent.
Description of Time
Maximum time set out in Legal Aid Tariff
Time Claimed by Agent in Exhibit L
Time Awarded by Arbitrator under Schedule 1
Preparation for pre-trial/pre-hearing conference
Maximum: 3 hrs.
Sept. 10/92 - 1 hr. 50 mins.
2 hrs.
Attendance on pre-trial/pre-hearing conference
Maximum per attendance: 3 hrs.
Sept. 24/92 - 3 hrs.
Nov. 13/92 - 2 hrs.
Dec. 1/92 - 1 hr. (telephone)
6 hrs.
Preparation before trial/hearing
Maximum: 20 hrs.
Aug. 20 to Dec. 7/92
164 hrs. less time previously noted = 156 hrs.
20 hrs.
Description of Time
Maximum time set out in Legal Aid Tariff
Time Claimed by Agent in Exhibit L
Time Awarded by Arbitrator under Schedule 1
Attendance at trial/hearing
No Maximum: actual number of hours in attendance
Dec. 8/92 -10 hrs. 30 mins.
Dec. 9/92 -10 hrs. 30 mins.
Dec. 10/92 - 9 hrs.
Feb. 8/93 - 4 hrs. 30 mins.
Feb. 10/93 - 7 hrs. 30 mins.
Actual Attendance: 7 hrs. + 3 hrs. 30 mins. prep. time
7 hrs. + 3 hrs. 30 mins. prep. time
7 hrs. + 2 hrs. preparation time
3 hrs. + 1 hr. 30 mins. prep. time
7 hrs. 30 mins.
Total Attendance:
31 hrs. 30 mins.
Total Additional Preparation Time: + 10 hrs. 30 min
Preparation during trial/hearing
Maximum: 5 hrs. per day of hearing
Dec. 8/92 - 2 hrs. 30 mins.
Dec. 9/92 -
Dec. 10/92 -
Feb. 8/93 -
Feb. 10/93 - 3 hrs. 30 mins.
6 hrs.
- 2 hrs. spent on Dec. 11/92, although not a hearing date
Matters subsequent to trial/hearing - general
Maximum: 1 hr.
Feb. 22/93 - 4 hrs. 15 mins.
1 hr. attendance related to settlement
Correspondence/
Maximum:
Non-hearing days from
No award permitted under the
communications
5 hrs.
Dec. 11/92 to Feb. 22/93 20 hrs.
provisions of Schedule and Regulations
TOTAL
APPROX. 236 HRS.
APPROX. 79 HRS.
Exhibit A records the amount of $4,280.00 for expenses related to the cost of verbatim transcripts of the hearing. There is no reference to transcript expenses in Schedule 1, however section 47 of the Dispute Resolution Practice Code provides for payment of the cost of a transcript of proceedings as follows:
47.1 Where a party wishes a transcript of the proceedings, such a party shall inform the other party of such intent, make the necessary arrangements, and pay the cost of the transcript directly to the person or agency making such a record.
These transcripts were obtained by the Applicant subsequent to the settlement order in this arbitration, in contemplation of other proceedings considered by the Applicant. The transcripts were not referred to during the course of the hearing. I therefore decline to award any amount toward the reimbursement of the cost of the transcripts.
Exhibit A records the amount of $2,575.00 for expenses related to transportation costs incurred by the Applicant. Schedule 1 provides for travelling expenses as follows:
6-(1) The amount of the following expenses made by or on behalf of the insured person, his or her attendant, if one is required, his or her lawyer and his or her agent may be awarded:
(2) The maximum amount of travelling expenses that may be awarded for a person,...
(b) for an arbitration,... hearing that takes place outside the municipality in which the person resides and within 300 kilometres of his or her residence, is the lesser of,
(i) 30 cents per kilometre for one return trip between the person's residence and the place in which the hearing takes place, or
(ii) the amount incurred by the person;
Schedule 1 also provides that:
The amount of the following disbursements made by or on behalf of the insured person may be awarded: ...
for other out-of-pocket expenses incurred in furtherance of the arbitration...proceeding.
The Applicant testified that the amount claimed in Exhibit A is equivalent to 103 taxi trips of an approximate distance of 62.5 kilometres per trip with an average fare of $25.00. The Applicant provided no receipts to substantiate these expenses and explained that, in fact, he did not take taxis on all these occasions. The Applicant testified that part of the amount claimed is intended to compensate the Applicant for the hardship he has endured as a result of the accident, as well as for the wear and tear on his own car. The Applicant provided no details concerning the calculation of the 62.5 kilometre distance nor the 103 occasions. The burden of proof lies upon the Applicant to establish the actual expenses incurred and their connection to the arbitration proceeding. Schedule 1 does not contemplate an award for theoretical expenses nor compensation for hardships endured. The Applicant has not met the burden of proof in connection with this claim.
Counsel for the Insurer estimated that the round trip distance between the Applicant's home in Scarborough and the Commission's offices in North York, where the hearing took place, is approximately 20 kilometres. Counsel for the Insurer agreed to pay the Applicant's round-trip mileage for attendance at the two pre-hearing discussions and six subsequent attendances before me. I award the sum of $48.00 calculated at the rate of 30 cents per kilometre in respect of the Applicant's travelling expenses.
Exhibits A, C and D record the amount of $1,214.45 for expenses related to the rental of a laser printer.
Schedule 1 provides for payment of the following:
The amount of the following disbursements made by or on behalf of the insured person may be awarded: ...
For typing, printing and reproducing copies of documents.
(emphasis added)
Under cross-examination, the Applicant admitted that he had been using the laser printer prior to the commencement of his application for arbitration, that he used the laser printer for matters unrelated to the arbitration, and that he continued to rent the laser printer after the arbitration was settled. The Applicant also testified that he had access to another machine which produced a poorer quality print, however he continued to rent the laser printer to meet the quality standards of the Commission.
There is no requirement by the Commission for documents of a particular quality of print. The Commission and arbitrators frequently receive and accept handwritten or typewritten materials. This expense is not sufficiently connected to the arbitration proceeding to be awarded to the Applicant.
Exhibits A and B record the expense of $404.46 for clerical services provided by Ms. Jackie Braithwaite, of the firm Hunt Temporarily Yours, at the hourly rate of $16.80. The Applicant hired Ms. Braithwaite to take notes during the hearing. The Applicant explained that he was too nervous and preoccupied with his own evidence to take notes, while his agent was too involved in presenting the case to take notes. Schedule 1 provides for the payment of lawyer's fees and agent's fees, but does not contemplate payment of a note taker's fees. It also appears that the Applicant did not rely upon the notes taken by Ms. Braithwaite in that he subsequently ordered a transcript of the proceedings at the cost of $4,280.00. In these circumstances, I decline to award this expense.
Exhibits F and I reflect the total amount of $244.18 in connection with photocopying, and purchases of stationery, office supplies, books and publications. On the basis of subsection 2 of section 4 of Schedule 1 (quoted previously), counsel for the Insurer accepted $176.56 of photocopying expenses reflected in receipts contained in Exhibits F and I. Counsel disputed those expenses related to the purchase of books and publications, which were unconnected to the issues raised in the arbitration. I accept counsel for the Insurer's submissions and deny these claims.
Counsel also objected to expenses for stationery and office supplies on the basis that a component of the agent's fee allowed under Schedule 1 included such expenses. The Applicant testified that he purchased and used many of the supplies in connection with his own preparation for the hearing. I accept the Applicant's evidence on this point and award an additional $33.85, which is approximately one half of the remaining disputed expenses relating to stationery and office supplies.
Exhibit A records $217.78 for entertainment expenses - no receipts were provided. Mr. Epps testified that these expenses related to meals and drinks for himself and his agent either before or after their attendances at the hearing.
Schedule 1 provides for payment of meal expenses as follows:
6-(1) The amount of the following expenses made by or on behalf of the insured person, his or her attendant, if one is required, his or her lawyer and his or her agent may be awarded:
- For overnight accommodation and meals, in accordance with subsection (3).
(3) The maximum amount that may be awarded for overnight expenses and meals is $150 per night for each overnight stay required for the person.
In my view, meal expenses are connected to an overnight stay being required by the Applicant and his agent to attend the hearing. Neither the Applicant nor his agent were required to travel great distances to attend the hearing. They did not require an overnight stay. I make no award for entertainment expenses claimed.
Exhibits G, H and I reflect a total of $164.99 for expenses related to registered mail and Purolator delivery of documents. Counsel for the Insurer accepted $99.60 for registered mail receipts marked as Exhibit G and $47.04 for Purolator delivery receipts marked as Exhibit I, for a total of $146.64. Counsel for the Insurer objected to $18.35 for registered mail receipts marked as Exhibit H because the receipts related to matters beyond the issues in dispute in this arbitration. I agree with counsel for the Insurer's submissions. I make no award for the expenses totaling $18.35.
Exhibit E reflects parking receipts in the amount of $76.50. I award $55.00 for parking expenses, which are in furtherance of the arbitration. The Applicant was unable to explain the connection between the expense and the arbitration for the remaining receipts.
Expenses related to the attendance of medical witnesses:
The Insurer paid the Applicant's claim for $650.00 in connection with the afternoon attendance of Dr. Chow, a specialist in the field of rehabilitation medicine.
The Insurer disputed the Applicant's claim for $2,439.00 in connection with the attendance of Dr. Alex Donskoy, a general practitioner.
Schedule 1 provides for an award in respect of the attendance of expert witnesses on the following basis:
5-(1) The amount of the following witness fees paid by or on behalf of the insured person may be awarded:
- For the attendance of an expert witness who gives opinion evidence at an arbitration...hearing or whose attendance is necessary, in accordance with subsection (3).
(3) The maximum amount that may be awarded for the attendance of an expert witness is $200 per hour of attendance, up to a maximum of $1600 per day.
Dr. Donskoy prepared several medical reports on behalf of the Applicant, which were filed as Exhibit 8 in the hearing. Dr. Donskoy attended the hearing on the morning of December 10, 1992 in response to a subpoena. Unfortunately, Dr. Donskoy was not called to give evidence that morning and left the Commission at noon that day. Dr. Donskoy returned to give evidence on the morning of February 8, 1993. The maximum amount that can be awarded in respect of the expenses of an expert witness is $200.00 per hour of attendance. I award expenses at the rate of $150.00 per hour for approximately four hours of attendance in connection with the hearing. In arriving at this figure, I have taken into consideration that Dr. Donskoy is not a specialist.
Exhibit K is a copy of the invoice issued by Dr. Donskoy for his court attendance. The invoice contains a handwritten notation which states:
Note: this bill includes
A. 1. Reviewing file on December 9, 1992 and February 7, 1993
- Court attendance and cancellation of patient visits on December 10, 1992 and February 8, 1993
B. bill based on hourly rate and number of hours taken for arbitration preparation, travel, appearance etc.
The invoice does not show an hourly rate nor does it indicate the number of hours spent.
The Insurer agreed to pay Dr. Donskoy $150.00 for his time spent with the Applicant's representative, in preparation for the hearing as set out in Exhibit J. Dr. Donskoy received $53.00 when served with the subpoena. I decline to award any further amount for Dr. Donskoy's travel or preparation time. Schedule 1 does not contemplate further compensation for the cancellation of patients on days the doctor attended to give evidence.
Expenses related to medical reports and records:
Exhibit J itemizes the expenses related to medical records and reports obtained by the Applicant.
Schedule 1 provides for an award in respect of an expert's report on the following basis:
5-(1) The amount of the following witness fees paid by or on behalf of the insured person may be awarded:
- For a report prepared by an expert, provided to the other parties to an arbitration... hearing and necessary for the conduct of the hearing, in accordance with subsection (4).
(4) The maximum amount that may be awarded for a report prepared by an expert is $800.00.
The Insurer paid $630.00 for a nine-page report from the specialist, Dr. R.K. Chow, marked as Exhibit 6 at the hearing. Exhibit J incorrectly itemizes this expense as $640.00.
Exhibit J records expenses charged by the Applicant's general practitioner, Dr. Donskoy. The Insurer agreed to pay $150.00 charged for a meeting between the doctor and the Applicant's representative.
The Insurer paid $50.00 with respect to a pre-printed Form 4 medical report for which Dr. Donskoy charged $115.00. This form was not marked as an exhibit nor referred to at the hearing. The pre-printed form contains limited space for comment and several check-off items. I find that the $50.00 paid by the Insurer is a reasonable amount.
Dr. Donskoy charged $350.00 for a two and one half page report marked as part of Exhibit 8 at the hearing. The Insurer paid $225.00 for the report. The report answers specific questions posed by the Applicant's representative. I find that the amount paid by the Insurer in respect of this report is reasonable.
Dr. Donskoy charged $250.00 for a one and one half page report marked as part of Exhibit 8. The report listed items which, in the opinion of Dr. Donskoy, were "absolutely necessary for Glenn Epps [sic] recovery and to [sic] pre-accident state". Among the items listed were: a new bed for visits to his parents' home, a home entertainment system, a cheerful blind or drapes set, redecoration of his apartment, and the safest automobile on the market. The report contained little in the way of clinical observations or medical analysis to assist the reader to understand the relationship between the purchase of these items and the Applicant's rehabilitation. I award $50.00 in respect of the preparation of this report.
Exhibit J records the expense of $600.00 for a seven-page report prepared by F. Shahidi, Doctor of Chiropractic. This report and accompanying invoice were marked as Exhibit 7(b) at the hearing.
Counsel for the Insurer referred to the recommended fee schedule of the Ontario Chiropractic Association. Item 10 of Part B of the fee schedule of the Ontario Chiropractic Association states:
- Reports:
a) Legal - Basic Report (2 to 3 pages)
($ 150/hr) $200-$350
I heard no evidence concerning the actual number of hours spent by Dr. Shahidi in respect of the preparation of this report. The fee of $600.00 for a seven-page report is not inconsistent with the fee structure recommended above. I therefore award the full expense of $600.00.
Exhibit J records the expense of $100.00 in respect of a pre-printed Form 4 medical report prepared by Dr. M.R. Maleki-Yazdi dated September 16, 1992. The Insurer paid $50.00 with respect to this report. This form was not marked as an exhibit nor referred to at the hearing. I find that the $50.00 paid by the Insurer in respect of this report is reasonable.
Exhibit J records the expense of $50.00 in respect of a one-page narrative report prepared by Dr. V. Wong of M.D. Clinic. This narrative report was marked as Exhibit 1 at the hearing and describes the Applicant's condition soon after the accident. I award the expense of $50.00.
Exhibit J records the expense of $80.00 for hospital records from Ross Memorial Hospital, in connection with the Applicant's attendance for migraine headache pain. These records were not marked as an exhibit nor referred to at the hearing. Counsel for the Insurer stated that, to the best of his knowledge and information, these records had not been produced to the Insurer. I make no award for this expense, however, counsel for the Insurer agreed to pay this expense to the Applicant if the Applicant can establish that the records were produced to the Insurer prior to the hearing.
Expenses related to the work of an accountant:
Exhibits A and J record expenses totalling $921.00 in connection with services performed by Mr. Don Ade Alao, a certified general accountant with the firm, ALAO and Associates. The Applicant stated that he sought the services of Mr. Alao for his expertise in the areas of accounting and business.
At the request of the Applicant, Mr. Alao prepared a five-page report dated November 27, 1992, for which he charged $600.00. In reviewing the report, I find that it ranges over a number of issues and offers opinions beyond the stated areas of expertise. The Applicant himself determined that the report was not "necessary for the conduct of the arbitration". The report was not entered into evidence, nor was Mr. Alao scheduled to give oral testimony at the hearing. I therefore make no award for the expenses incurred in connection with the report of Mr. Alao.
Mr. Alao also prepared a one-page summary of expenses marked as Exhibit A, for which he charged $321.00. This summary was of some assistance during the hearing, in connection with the Applicant's claim for expenses. The Applicant testified that he provided Mr. Alao with a bundle of receipts. Mr. Alao reviewed and totalled the receipts, and listed them on the single sheet marked as Exhibit A. Exhibit A is incomplete and inaccurate in some respects. It omits reference to Mr. Alao's own $600.00 report fee, incorrectly reflects the fees charged by the Applicant's agent, and the expenses related to photocopying, supplies, registered mail and parking. I find that expertise in the areas of accounting and business was not required for the preparation of this document. I award $50.00 of the $321.00 expense claimed in connection with the preparation of Exhibit A, under section 4 of Schedule 1, quoted previously.
Order:
The Applicant is entitled to proper expenses incurred in respect of the arbitration as specifically allowed in this decision;
The Insurer is required to pay the Applicant the sum of $3,948.20 in respect of outstanding expenses claimed;
The Applicant is entitled to receive interest on overdue payments at the rate of 2 per cent per month, in accordance with section 24 of the No-Fault Benefits Schedule, calculated from the date of this decision.
September 3, 1993
Janice Mackintosh
Arbitrator
Date
SCHEDULE "A"
Claim for Expenses in connection with Settled Arbitration
A.
Summary of Arbitration Expenses, prepared by ALAO Associates, dated February 22, 1993
B.
Invoice for services of Jackie Braithwaite of Hunt Temporarily Yours, dated 12/16/92
C.
Statement of Account from North American Office Machines re rental of laser printer, dated February 19, 1992
D.
Summary of invoices issued by North American Office Machines
E.
Parking receipts (19 in total)
F.
Office supplies and photocopying receipts (8 pages of 22 receipts)
G.
Registered mail expenses (4 pages of 24)
H.
Registered mail expenses (1 page of 5)
I.
Purolator receipts (3) and stray receipt for copy service
J.
Summary of outstanding expenses for medical reports and records
K.
Dr. Alex Donskoy's account for court attendance, dated March 16, 1993
L.
Detailed account of time spent by Raymond W. Flook
List of Exhibits marked in the hearing which settled:
Tab 20, Book 1 - Report of Dr. V. Wong, re August 14 and August 18, 1991 visits
Tab 5, Book 1, Pages 1 to 14 - Reports and Records of Canadian Back Institute
Tab 7, Book 1, Pages 1 to 4 - Reports and Records of Dr. M.A. Bent
Tab 24, Book 1, Page 16 - Letter from Warren B. Collier, Toronto-Dominion Bank, dated May 20, 1992
5a) Tab 24, Book 1, Pages 17 & 18 - correspondence between The Co-Operators and Toronto-Dominion Bank, dated May 21, 1992
5b) Tab 24, Book 1, Page 19 - correspondence dated July 28, 1992
- Tab 9, Book 1, Pages 1 to 17 - Reports and Records of Dr. R.K. Chow
7a) Tab 17, Book 1 (all items) - Statement of Account of Sheppard-Leslie Chiropractic Clinic and covering fax sheet
7b) Book 2 (last item) - Letter re Medical-legal report fee, from Sheppard-Leslie Chiropractic Clinic, dated November 30, 1992
Tab 2, Book 1 (Pages 1 to 27) - Reports and Records of Dr. Alex Donskoy
O.H.I.P. Summary (15 pages)
Letter from Mr. Epps to Dr. Sagi, dated October 20, 1992
Assessment of Claim by Insurer form, dated May 21, 1992
Assessment of Claim by Insurer form, dated July 14, 1992
Automobile Safety Standards, Transport Canada Form TP3812
Tab 23, Book 1 (pages 1 and 2) - letters re Mercedes-Benz
Tab 23, Book 1 (page 3) - Quotations for home entertainment centre
Tab 23, Book 1 (page 4) - re magazines and reading material
Tab 23, Book 1 (pages 5 through 9) - re decorating expenses
18.19.&.20. Appointment Schedules for Mr. Epps, for months of August, September and October 1992, respectively
Bundle of documents prepared and typed by Mr. Epps during period August to November, 1992
Tab 4, Book 1, Pages 1 to 10 - Report and Records of Pain Management Clinic
Tab 24, Book 1 (pages 1 to 15, and 20 to 35) - Documents re Toronto-Dominion Bank
Tab 25, Book 1 (all items) - Income Tax Returns
Book 2 - Letter of complaint re Dr. Rotstein, dated November 18, 1992 (8 pages)
Mileage chart, prepared by Mr. Epps
Tab 2, Book 1 (page 25) - prescription from Dr. Donskoy dated August 19, 1992
Tab 19, Book 1 - Y. Steenburgh document (2 pages)
Handwritten document by Mr. Warren Collier, entitled "History Recap" (10 pages)
Typed Memorandum to File on Glenn Epps (4 pages), dated November 29, 1991, prepared by Mr. Collier
Book 2, 2-page document - Toronto-Dominion record of sick days for Mr. Epps
Toronto-Dominion Bank Performance Evaluation, dated April 5, 1990, completed by Branch Manager at sub-branch
Letter from L.D. Hutchinson of Toronto-Dominion Bank to A.W. Bell, dated December 4, 1991
Letter from J.A. Griffith of Toronto-Dominion Bank to L.D. Hutchinson, dated December 19, 1991
Bundle of documents in Toronto-Dominion Bank file, maintained by Mr. Collier
Aetna Life Insurance - Group Insurance Policy
Handwritten memo to file by Mr. Collier, dated May 20, 1992
Letter from Mr. Epps to Mr. Collier, date stamped January 28, 1992
Typewritten document provided to Mr. Collier by Mr. Epps entitled "Financial Losses due to Termination"
Human Resources personnel file for Mr. Epps (refer to detailed inventory for complete contents)
Statement of Claim, prepared by Mr. Epps, dated March 7, 1991, filed May 1992
Curriculum Vitae of Dr. R. Chow (14 pages)
Transportation Expense Claims of Mr. Epps