Neutral Citation: 2000 ONFSCDRS 215
FSCO A97-000239
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ANTHONY B. PERSAUD
Applicant
and
COMMERCIAL UNION ASSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
John Wilson
Heard:
Written submissions received by August 11, 2000 and a hearing on August 11, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto
Appearances:
No one appearing for Mr. Persaud
Jennifer Simpson, Law Clerk, for Commercial Union Assurance Company
Issues:
The Applicant, Anthony B. Persaud, was injured in a motor vehicle accident on January 23, 1995. In a decision dated April 14, 1999, I dealt with his claims for statutory accident benefits under the Schedule.1 I ordered Mr. Persaud pay to Commercial Union its expenses in this matter, while reserving on the amount of the expense order:
The sole issue in this further hearing is:
- What is the amount of expenses payable by Mr. Persaud to Commercial Union?
Result:
- The total amount of expenses payable by Mr. Persaud is $7,418.04.
EVIDENCE AND ANALYSIS:
A Notice of Expense Hearing was sent by the Commission to all parties, including Mr. Persaud on June 30, 2000. Mr. Persaud's copy was returned by Purolator as undeliverable on July 21, 2000. The envelope is marked: "3 at last 067-11."
A copy of my decision awarding expenses to Commercial Union was mailed to Mr. Persaud on April 14, 1999, and was not returned. I am satisfied that Mr. Persaud was made aware of the award of expenses against him by receipt of the decision in this matter and has been given reasonable notice of the resumption of the hearing to deal with expenses as required by the Statutory Powers Procedure Act.
Neither Mr. Persaud, nor any representative on his behalf attended at the expense hearing. Nor did Mr. Persaud attend for the main arbitration hearing in spite of being provided with due notice.
The Insurer filed its bill of costs in this matter with the Commission, together with a copy of correspondence, dated October 18, 1999, directed to Mr. Persaud, providing him with copies of the detailed bill of costs and a request for payment. I am satisfied as well that Mr. Persaud was made aware of the amount and nature of the claim for costs against him, and that the Insurer complied with the notice provisions of Section 77 of the Practice Code.
The Commission does not normally do a line by line examination of a bill of costs. Certainly in this case, where the request is unopposed, it would not be appropriate. Instead, I will examine only whether the amounts claimed are reasonable having regard to the nature of the hearing, and the type of claims permitted under the Insurance Act and the Practice Code.
It should be noted that this matter has been plagued with delays, adjournments and repeated failures by Mr. Persaud to appear at scheduled hearings. Mr. Persaud never withdrew his application, although he failed to show up or present evidence when the main arbitration was heard. Mr. Persaud also failed to honour production agreements and orders. As a result, counsel for the Insurer was forced to prepare for pre-hearings and hearings that never took place. This is to some degree reflected in the bill of costs of Mr. Schnarr, its counsel.
Mr. Schnarr billed a total of 52.10 hours at a rate of $67 per hour. In addition he billed for 52.9 hours work for a law clerk at a rate of $23 per hour. I find that, given the need to prepare a potentially complex case that involved at least three pre-hearings and several adjournments, as well as attendance and argument at a hearing, the number of hours expended and the use of a law clerk was reasonable. I find that the total fee of $4,707.40 is not unreasonable. At the hearing, I found that:
On the basis of the history of this arbitration, the previously cited comments of pre-hearing Arbitrator Novick, concerning Mr. Persaud's conduct and his failure to comply with production orders, I find, as well, that Mr. Persaud's conduct tended to prolong, obstruct, and hinder the proceeding.
Although, in many cases, concern has been expressed that a high award of expenses may have the effect of deterring applicants from resorting to arbitration to resolve their disputes, I find that this is not an appropriate case to reduce an expense award for such a reason. Mr. Persaud, by a consistent pattern of conduct, showed disrespect for the arbitration process, and now must abide by the consequences of his behaviour.
The disbursements claimed of $2,150.10 appear to fall within the normal criteria and range of such expenses at the Commission, and I allow them in total.
I therefore direct that the amount of expenses, inclusive of fees and disbursements, to be paid by Mr. Persaud to Commercial Union is $7,418.04, which shall be payable forthwith.
November 28, 2000
John Wilson
Arbitrator
Date
FSCO A97-000239
BETWEEN:
ANTHONY B. PERSAUD
Applicant
and
COMMERCIAL UNION ASSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Persaud shall pay to Commercial Union the amount of $7,418.04 as the total of assessed expenses in this matter.
November 28, 2000
John Wilson
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.