June M. Johnston v. Pafco Insurance Company Limited, 2001 ONFSCDRS 122

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2001 ONFSCDRS 122 FSCO A99-001086

BETWEEN:

JUNE M. JOHNSTON Applicant

and

PAFCO INSURANCE COMPANY LIMITED Insurer

DECISION ON EXPENSES

Before: David J. Evans

Heard: By telephone conference call on June 15, 2001.

Appearances: Donald Johnston for Mrs. Johnston Stuart Aird for Pafco Insurance Company Limited

Issues:

The Applicant, Mrs. June M. Johnston, was injured in a motor vehicle accident on January 10, 1997. In a decision dated September 28, 2000, I dealt with her claims for statutory accident benefits under the Schedule.¹ I made orders that, among other things, granted her 52 weeks of non-earner benefits at the non-adjusted rate, visitor's expenses, and housekeeping expenses, while reserving on the issue of expenses.

The issue in this further hearing is:

1. Is Mrs. Johnston entitled to her expenses incurred in respect of this arbitration hearing and, if so, what is the amount of those expenses?

Result:

1. Mrs. Johnston is entitled to her expenses incurred in respect of this arbitration hearing but no arbitration expenses are outstanding.

EVIDENCE AND ANALYSIS:

The Applicant's son, Donald Johnston, represented her at the hearing, at which three witnesses testified over three days. The Applicant was generally successful. I am satisfied that she meets the criteria in the Expense Regulation² for her entitlement to expenses.

Regarding the amount of the expenses, the parties dispute the hourly rate that the Applicant seeks for Mr. Johnston's services as an agent, the total hours spent on the file, and some of the disbursements.

It should be noted that, prior to the expense hearing, Pafco made payments towards expenses: $1500 as agent's fees, and $210 towards disbursements (the $100 filing fee and $110 for two reports).

The Applicant claims that her son is entitled to an hourly rate of $23 an hour for time before and after the hearing and $40 an hour while appearing at settlement conferences and at the hearing. The Applicant claims the higher rate based on cases such as Olszynko³ or Oppedisano⁴ where "legal fees" were held to include fees for assistants to counsel, and the fees for the assistants were set higher than $23 an hour.

Mr. Johnston is not a lawyer and did not act as the Applicant's legal counsel. He acted as his mother's untrained agent, and under Rule 76.2 I find that Mrs. Johnston is only entitled to the maximum awardable amount of $23.

The Applicant also claims for the assistance that Mr. Johnston's wife (the Applicant's daughter-in-law) provided to her son at the hearing.⁵ Aside from my doubts that an insured person could be awarded both the maximum amount for an agent's fee and as well an additional fee for contemporaneous assistance to that agent by another person,⁶ I received no evidence (in the sense of detailed time dockets or evidence the assistant gave or from my own observations) that Mr. Johnston's wife provided any assistance in attending at the hearing to assist Mr. Johnston that warrants compensation. I deny the time claim for Mr. Johnston's wife.

Mrs. Johnston claimed over 180 hours for her agent's preparation for and attendance at the hearing and at the expense hearing. No detailed time dockets were produced to substantiate the time claimed. The issues were not complex and the hearing time was relatively short. In these circumstances, I find that the application of a ratio of the number of hours of the hearing to the total hours to be reasonable. This approach has been criticized.⁷ However, in this case, when I have no time dockets to work with and the claimed times seem excessive by any standard, I will fall back on the ratio.

It has been noted that ratios have ranged from 1 to 4.⁸ This case was not particularly complex and there was little oral evidence for the Applicant other than that of Mr. Johnston. I find that an appropriate ratio for this relatively simple case is a middle one of 2.5.

The Applicant claims 20 hours for Mr. Johnston's services at the hearing itself, presumably on the basis of two whole days at 8 hours and one half day at 4 hours. Mr. Johnston submitted that he relied for this submission on Oppedisano, in which Arbitrator Killoran allowed for counsel's need to consult with his client, his clerk and witnesses during the course of the hearing.

However, this case can be distinguished because Mr. Johnston was the guiding force behind the claim, as his mother is suffering from dementia, so he could not consult with her in any meaningful way, and he was the only other witness for the applicant's case. I have allowed for the actual hearing time.

I find that the actual hearing time was 12 hours. I allow an additional hour for the expense hearing. Multiplying the total of 13 hours by the ratio of 2.5 yields 32.5 hours for preparation. Therefore, I find that the Applicant is entitled to a total of 45.5 hours for Mr. Johnston's preparation for, attendance at, and services subsequent to the hearing (that is, the preparation for the expense hearing), which multiplied by $23 yields a total of $1,046.50.

Pafco disputes certain portions of the $841.59 the Applicant has claimed as disbursements. Pafco disputes the $106 in attendance allowance, witness fees and witness travel allowances for both the Applicant and Mr. Johnston. I find that these expenses are not payable for the applicant and that Mr. Johnston is already compensated as a representative.

Pafco disputes the $26 the Applicant claimed in parking for the attendance of Mr. Johnston's assistant. As I have denied the claim for an assistant, I deny the claim of $26 for the assistant's parking as well.

Pafco disputes the 500 pages of printed documentation claimed at $.40 a page for a total of $200. I find that the $0.40 a page should be reduced to $0.25, reducing the amount claimed by $75.

I find that these deductions reduce the disbursements to $634.59. I find that the total award for fees and disbursements is $1681.09. As the Applicant has already received $1,710.00 towards her fees and disbursements, I find that no expenses are outstanding.

August 24, 2001

David J. Evans Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 122 FSCO A99-001086

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JUNE M. JOHNSTON Applicant

and

PAFCO INSURANCE COMPANY LIMITED Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mrs. Johnston is entitled to her expenses incurred in respect of this arbitration hearing but no arbitration expenses are outstanding.

August 24, 2001

David J. Evans Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2Rule 73.2 of the Dispute Resolution Practice Code (Third Edition) (the "Code") requires me to consider the criteria referred to in the Expense Regulation found in Section F of the Code.
3. 3Olszynko and Dominion of Canada General Insurance Company (FSCO A97-001495, August 27, 1999)
4. 4Oppedisano and Zurich Insurance Company (FSCO A99-001137, February 11, 2000)
5. 5That is, there are claims for attendance at the hearing by both Mr. Johnston and by his wife, both for 20 hours. The entry on the Supplementary Bill of Expenses for the assistant states "to Marshall Evidence & transport witness."
6. 6As Mrs. Johnston has already been awarded the maximum hourly rate for her agent's fees for the time at the hearing, I do not understand where any other funds could be obtained to pay for an assistant for those exact same hearing hours.
7. 7In Argirovski and Allstate Insurance Company of Canada (FSCO A98-000816, December 7, 2000), Arbitrator Palmer described the use of a ratio as "a crude measure that does not take account of the fact that, in many cases, additional time spent in preparation is reflected in decreased time spent in a formal arbitration hearing."
8. 8Henri and Allstate Insurance Company of Canada, (OIC A-007954, August 16, 1996)