Neutral Citation: 1998 ONFSCDRS 34

¹ FSCO A-002172

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

GHENET WORKU

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION on EXPENSES

Issues:

The Applicant, Ghenet Worku, was injured in a motor vehicle accident on July 28, 1990. I dealt with her claims for statutory accident benefits² in a decision dated August 29, 1996. I made the following order:

1. The Insurer shall pay Ghenet Worku weekly income benefits under section 12(1) of the Schedule to July 28, 1993. The parties agreed that the quantum of weekly income benefit is $424.10, less the amounts already paid to Ms. Worku by the Insurer to November 24, 1992;

2. Ghenet Worku is not entitled to weekly income benefits under section 12(5)(b) of the Schedule beyond July 28, 1993;

3. The Insurer shall pay supplementary medical and rehabilitation benefits under section 6 of the Schedule to Ghenet Worku for massage or shiatsu therapy to assist her reintegration into the workforce. The issue of the specific quantum of these benefits was deferred by agreement of the parties;

4. The Insurer is entitled to a credit of $29,000 to be applied against amounts owing to Ghenet Worku pursuant to this order. The Insurer is entitled to a repayment of any outstanding amount under section 27(3) of the Schedule;

5. The Insurer shall pay Ghenet Worku interest on any amounts owing to her, and her expenses incurred in the hearing.

The parties subsequently sought an assessment of Mrs. Worku's expenses in accordance with the procedures set out in section 71 of the Dispute Resolution Practice Code (June 1, 1996 amendment). Counsel appeared before me on June 17, 1997 in respect of the following issues:

1. Preparation time claimed by Mr. Grant, counsel for the Applicant.

2. Time claimed by Mr. Grant for travelling to and from the hearing and its resumptions.

3. Time claimed by Mr. Grant for his attendance at 7 days of hearing.

4. Time claimed by Mr. Grant for his law clerk.

5. Disbursements claimed by Mr. Grant.

There was no dispute concerning the appropriate hourly rates to be applied to the various times claimed.

At the expense hearing, counsel for the Applicant raised several issues which were not referred to in the materials filed. These issues included:

1. Do the arbitration expenses awarded under section 282(11) of the Insurance Act belong to the Applicant Ghenet Worku, or are they an award of expenses to her counsel? Is the award payable to Mrs. Worku or to her counsel?

2. If the award of expenses belongs to Mrs. Worku, is the Insurer entitled to apply the $29,000 credit referred to at paragraph 4 of my original Order dated August 29, 1996 against the amount of expenses owed to the Applicant? If so, when does the set-off occur?

3. What rate of interest, if any, applies to an award of expenses made under section 282(11) of the Insurance Act?

Counsel for the Insurer argued that I had no jurisdiction to deal with the further issues raised by the Applicant and in any event, objected that he was not prepared to deal with these further issues on the June 17th date. I directed that the issue of my jurisdiction and the additional issues be put over to September 4, 1997.

Order of June 17, 1997:

I delivered an oral decision with oral reasons concerning the disputed issues as follows:

1. The Applicant is allowed her expenses of the arbitration in the total amount of $18,587.29 broken down as follows:

a) 91.7 hours for Mr. Grant's preparation time;

b) 20 hours for Mr. Grant's travel time to and from the three resumptions of the hearing;

c) 7 hours of time for Mr. Grant's law clerk;

for a total allowance for legal fees of $12,872.50.

d) disbursements subject to GST of $4,337.12;

e) GST on those disbursements calculated at $1,204.67;

f) disbursements not subject to GST of $173.00;

for a total allowance for disbursements of $5,714.79.

The parties agreed to forego full written reasons concerning these amounts, with the single exception of the allowance for Mr. Grant's travel time to and from the hearing and disbursements related to his travel, which are discussed below.

Order of September 4, 1997:

1. I have jurisdiction to deal with the matters raised on June 17, 1997 and argued on September 4, 1997 as they are intrinsic to my original Order dated August 29, 1996 and my assessment