Neutral Citation: 2000 ONFSCDRS 27
FSCO A98-001084
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ROBERT COUSINEAU
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
Judith Killoran
Heard:
By written submissions filed on October 19, November 12 and November 18, 1999
Appearances:
John A. Johnson for Mr. Cousineau
Darrell P. March for Zurich Insurance Company
Issues:
The Applicant, Robert Cousineau, was injured in a motor vehicle accident on February 28, 1996. In a Decision on Preliminary Issues dated October 8, 1999, I made the following orders:
Mr. Cousineau's Application for Arbitration is not dismissed. Mr. Cousineau may proceed to an arbitration hearing.
An adverse inference is not drawn against Mr. Cousineau for failing to produce certain documents.
Mr. Cousineau shall pay Zurich's expenses for this preliminary issues hearing.
The issue in this further hearing is:
- What is the amount of expenses which Mr. Cousineau shall pay to Zurich for the preliminary issues hearing?
Result:
- Mr. Cousineau shall pay Zurich $757.59 in expenses for the preliminary issues hearing.
EVIDENCE AND ANALYSIS:
On October 19, 1999, Zurich filed written submissions with respect to its expenses for the July 26, 1999 hearing on preliminary issues. Mr. Cousineau filed submissions on November 12, 1999 and Zurich responded with further submissions, in reply, on November 18, 1999.
Zurich's counsel requested legal fees for 12.6 hours of lawyer's fees (9.1 hours of preparation and 3.5 hours of attendance at the hearing) at a rate of $75.38 for himself and 0.7 hours of clerk and articling student fees at $23.00 per hour. The amount claimed for legal fees was $1033.51 and the amount claimed for disbursements was $25.60 for faxes and mileage. The total amount of expenses claimed was $1059.11 plus interest.
Criteria for Assessing Expenses:
The following principles1 are important when assessing expenses:
The main criterion in assessing an applicant's claim for arbitration expenses is reasonableness, subject to the rules set out in the expense regulation. An award of expenses is a matter within an arbitrator's discretion, considering all the circumstances of the case.
While the Legal Aid Tariff governs the maximum hourly rate applicant's counsel may charge, the Tariff does not restrict an arbitrator's discretion in fixing the number of hours that may be billed.
Rather than a "line by line" enquiry into an applicant's claim for expenses, arbitrators should fix a reasonable ballpark figure based on all the circumstances, including the dockets submitted, and the length and complexity of the hearing.
The conduct of the parties which may have tended to shorten or lengthen the proceedings is a relevant factor.2
Legal Fees and Disbursements:
Zurich submitted that although the hourly rate for a lawyer under the Legal Aid Plan is $67.00 per hour, a lawyer is entitled to increase that amount by 12.5 percent if the lawyer has the equivalent of four years or more of practice in civil litigation. Therefore, I agree to assess the hourly rate of Zurich's counsel at $75.38 per hour.
Zurich claims that because Mr. Cousineau failed to produce documents which were the subject of a pre-hearing arbitrator's order, it requested a preliminary issues hearing to resolve a number of outstanding issues. In its submissions, Zurich pointed to Arbitrator Makepeace's statement in Henri that: "In my view, ensuring that competent counsel who prepare for an arbitration hearing are fairly reimbursed for their efforts helps promote an efficient dispute resolution process with fair and reliable outcomes."3 Zurich relies on sections 4.1 and 6(2)(b)(i) of the Dispute Resolution Expense Schedule when claiming entitlement to its fax and mileage costs.
Mr. Cousineau submits that his counsel learned of Zurich's intention to bring a motion for dismissal on the afternoon of the day before the hearing. He asserts that the legal fees for the hearing should be minimal in consideration of Zurich's failed attempt to dismiss Mr. Cousineau's application and to draw an adverse inference for failing to produce documents. In his view, the fees claimed for preparation time are excessive if one takes into consideration that a settlement conference had taken place ten days prior to the scheduled hearing and less preparation would be required at the rescheduled hearing. In conclusion, Mr. Cousineau requests that fees for the preliminary issues hearing be reduced and any fees awarded for preparation should be made "in the cause."
I disagree with many of Mr. Cousineau's submissions. I question the relevance of a recent settlement conference in relation to an assessment of costs and I do not accept that preparation for the preliminary issues hearing translates into less preparation time for the rescheduled hearing. The issues dealt with at the preliminary issues hearing were quite different from those to be considered at the rescheduled hearing.
I do agree with Mr. Cousineau's submission that Zurich was not successful in its attempts to have the application dismissed and to have an adverse inference drawn against Mr. Cousineau for his failure to produce documents. However, I find that the preliminary issues hearing was an attempt by Zurich to use the time which had originally been set aside for the arbitration hearing to resolve outstanding issues. Some important information and clarification was obtained as a result of the preliminary issues hearing. For example, more details were obtained about the witnesses that Mr. Cousineau proposed to call. Also, Mr. Cousineau's financial records and Mr. Cousineau's Worker's Compensation file were produced.
I find that the preparation time claimed by Zurich is somewhat excessive and reduce it from 9.1 hours to 5.1 hours, which decreases the total amount of expenses to $757.59. This amount is payable forthwith. If there is any undue delay, Zurich can pursue its request for interest, at which time submissions on my authority to award interest on expenses will be considered.
February 3, 2000
Judith Killoran
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 27
FSCO A98-001084
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ROBERT COUSINEAU
Applicant
and
ZURICH INSURANCE 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. Cousineau shall pay Zurich $757.59 forthwith for the expenses of the preliminary issues hearing.
February 3, 2000
Judith Killoran
Arbitrator
Date