FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2000 ONFSCDRS 70
FSCO A96-001624
BETWEEN:
LESTER HALL
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
Fred Sampliner
Heard:
By telephone conference call on November 29, 1999.
Appearances:
Michael J. Henry for Mr. Hall
Darrell P. March for Zurich Insurance Company
Issues:
The Applicant, Lester Hall, was injured in a motor vehicle accident on October 20, 1994. In a decision dated July 24, 1998, I awarded Mr. Hall ongoing income replacement benefits under the Schedule,1 and his expenses of the arbitration process. Zurich objects to almost all of the Applicant's expenses.
REASONS:
Mr. Hall's claim involved his ongoing work disability. The hearing took place over four days in November 1997. The evidence concerning the single issue was not complicated. I do not accept Mr. Hall's claim that his counsel is entitled to the $150 maximum rate due to necessity of using experienced counsel to address the matter. I am prepared to allow Mr. Hall's counsel a slightly higher rate than the legal aid tariff, ($83.73 per hour) based on his efficient and effective representation of the claim. I find that Mr. Hall's counsel is entitled to reimbursement at the rate of $100 per hour.
Mr. Hall claims that he is entitled to 77.4 hours for counsel time. Zurich's counsel did not provide me with evidence to support his submission that the entries conflict with Thomson Rogers' previously submitted dockets. Zurich contends that, on its face, the claimed 14 hours for hearing attendance on November 12, 1997 is inconsistent with the parties' attendance that day. I am prepared to accept 8 hours for Mr. Hall's counsel to prepare and attend on November 12, 1997.
I find that between September 30, 1996 (preparation of the arbitration application) and November 19, 1997 (the last hearing date and end of the docket), lawyers Michael Henry, Adam Wagman and Neil Sacks worked 67.4 hours on Mr. Hall's arbitration case. The bulk of the time was spent by Mr. Henry. The services appear appropriately concerned with the disputed issues after the pre-hearing, and to prepare for and attend the hearing. I also allow two additional hours of lawyer time for preparation and attendance at the hearing to assess Mr. Hall's arbitration expenses. I find that Mr. Hall is entitled to $6,940 plus GST for counsel time.
Mr. Hall's claim for law student/clerk time of 93.3 hours is not consistent with the dockets. Mr. Hall's counsel asserted that law clerks Chris Temple, Carolyn Morrison, Edward Chadderton, Margaret Giles and Anna Didesare worked on the case. Two other docketed names (K. Harris and Donna Moscattini) also appear to be clerks, as neither are listed in the 1999 Ontario Lawyer's Phone Book. I find the time dockets reflect 72.7 hours of law student and clerk time.
Zurich argues that the law students and clerks were not necessary because legal research was unnecessary to the factual issue in this case and they did not attend the hearing. However, law students and clerks perform valuable work in other areas besides legal research to help defray the more expensive hourly rates of lawyers. They help prepare for the pre-hearing and attend. Clerks and students arrange productions and aid in preparation of the evidence for the hearing itself. Neither the Regulations or the Dispute Resolution Practice Code require attendance at a hearing in order for an expense to qualify within the arbitration process.
I reject Zurich's argument that time spent by a law student or clerk is only compensable for research and hearing attendance. Based on the $23 per hour rate, I find that Mr. Hall is entitled to $1,672.10 for these law student and clerk services plus GST.
Regulation 464/96 allows typing to qualify as a disbursement, which I find includes word processing. However, the $760.50 charge for word processing does not identify the hours or the work performed. Without some proof of how the amount was arrived at, I cannot find a measure to allow any portion.
There is no account from Dr. Barry Little for his half day testimony. Mr. Hall claims $1,200. The Expense Regulation 464/96 provides for an expert's testimony at $200 per hour, and a maximum $500 for preparation. I allow three hours for Dr. Little's half day attendance, and one and a half hours for preparation. I find that Mr. Hall is entitled to a total of $800 for Dr. Little's attendance and preparation.
The $600 bill for the medical report of Dr. Little is less than the $1,500 maximum set out in the Regulation. Although I did not specifically rely on Dr. Little's opinion, his report was useful in understanding Mr. Hall's condition. I find that Mr. Hall is entitled to $600 for Dr. Little's report, and that $150 is reasonable for copying his clinical notes and records. Without an explanation of Dr. Little's $25 "correspondence fee," I reject the charge.
Zurich did not suggest that Mr. Hall's service of summons to Dr. King, Dr. Kanalac, Orion Bus Industries and Therapeutic Rehabilitation was unnecessary. I find that Mr. Hall is entitled to the $53 conduct fees charged for each of these witnesses. Mr. Hall is also entitled to his $100 filing fee.
Zurich disputes the travel expenses for four trips by Ted Chadderton (law student) and Mrs. Hall (witness) to attend two days at the hearing. I find that Joyce Hall attended one day, and that Mr. Chadderton was not required to attend. I find that Mr. Hall is entitled to $50.40 travel expenses for himself, $25.20 for Mrs. Hall, and nothing for Mr. Chadderton.
Mr. Henry's $48 for four trips are incorrectly noted on the bill. He attended all four days of the hearing, not two days. I find that Mr. Hall is entitled to $96 travel reimbursement for Mr. Henry's attendance.
Mr. Hall did not produce any documents to substantiate the claimed long distance charges ($62.70), telex/fax usage ($372.50), courier services ($385.19), postage ($16.22), registered mail ($4.60), parking ($45.08), transportation and travel expenses ($36), photocopying ($1,835.44). Zurich disputes the entire charges for telex/fax, courier services and submits he is entitled to $450 for photocopying.
I allow the undisputed expenses for long distance charges ($62.70), postage ($16.22), registered mail ($4.60) and transportation/travel ($36). But since he did not provide any proof to substantiate either the telex/fax or courier services, I do not allow them. Mr. Hall is entitled to $450 for the photocopying agreed to by Zurich.
A letter from Thomson Rogers to the Workers' Compensation Board enclosing $50 for Mr. Hall's records is sufficient proof. I find he is entitled to $50 for the WCB records.
Moscattini and Associates billed Thomson Rogers $420 plus GST for service of summons to witnesses on Dr. Jacobs, Dr. Kanalac, Dr. Kitakufe, Dr. King, Therapeutic Rehab. Services and Orion Bus. Although these witness did not testify, their records were produced and I accept the $40 per attempt charges relating to these witnesses qualify as out-of-pocket expenses/charges in furtherance of Mr. Hall's claim in arbitration. I find he is entitled to $449.40 for service, or attempted service of the summons to these witnesses.
Zurich argues that the $1,200 charge for Dr. Ogilvie-Harris' 15 page medical report medical/legal report should be allowed at $250. The report contains much treatment recitation, without critical analysis. I am prepared to allow $600 for the report of Dr. Ogilvie-Harris.
To determine Mr. Hall's disability claim, I considered the vocational evaluation ($1,750) and the worksite comparison ($800) of the The Accident Management Group. The Regulation allows $1,500 maximum for a report. Mr. Hall is entitled to $1,500 and $800 for the respective reports.
Dr. Kitakufe billed Thomson Rogers $275 to copy 194 pages of his clinical notes and records. I am prepared to allow $150. I accept the $60 charge for Dr. Kwok to prepare his records.
I have included the applicable GST on the allowed disbursements where the provider has set it out in the statement. I do not accept Thomson Rogers' provision for GST on any other disbursements because they are apparently not responsible for the tax. I allow $602.80 for 7% GST on the legal and student/clerk fees.
Totalling all of the allowed professional fees, disbursements and taxes, I find that Mr. Hall is entitled to $15,427.42 for his expenses of the arbitration.
April 7, 2000
Fred Sampliner
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 70
FSCO A96-001624
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
LESTER HALL
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:
- Zurich shall pay to Mr. Hall $15,427.42 for his expenses of the arbitration process.
April 7, 2000
Fred Sampliner
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. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.