Zoe Vogdanou v. Canadian General Insurance Group, 2001 ONFSCDRS 167

Neutral Citation: 2001 ONFSCDRS 167

FSCO A00-000757

BETWEEN:

ZOE VOGDANOU

Applicant

and

CANADIAN GENERAL INSURANCE GROUP

Insurer

DECISION ON EXPENSES

Before:

David J. Evans

Heard:

By telephone conference call on November 2, 2001.

Appearances:

Wendy M. Moore Johns for Ms. Vogdanou

Gregory P. Heckel for Canadian General Insurance Group

The Applicant, Zoe Vogdanou, was injured in a motor vehicle accident on March 14, 1992. An arbitration hearing was scheduled to begin on April 9, 2001 to deal with her claims for statutory accident benefits under the Schedule.¹ The matter settled on the day of the hearing except for the amount of Ms. Vogdanou's expenses incurred in respect of the hearing. At the expense hearing, the parties agreed on the disbursements and the total hours claimed by Ms. Vogdanou's counsel and law clerk.

The only remaining issue in this expense hearing is:

What is the hourly rate for fees to be paid by Canadian General for the services of Ms. Moore Johns, solicitor for Ms. Vogdanou, and for the services of the law clerk who assisted Ms. Moore Johns?

Ms. Vogdanou is allowed an hourly rate of $110 for the services of Ms. Moore Johns and $23 for Ms. Moore Johns' clerk.

Legal Fees:

Rule 76.1 of the Dispute Resolution Practice Code — Third Edition provides that the maximum for legal fees is calculated using the hourly rates established under the Legal Aid Act for professional services in civil matters, adjusted to include any experience allowance. In Ms. Moore Johns' case, it is agreed that this hourly rate would be $75.50.

However, "where an adjudicator is satisfied that a higher amount for legal fees to an insured person is justified, an hourly rate of up to $150 may be awarded."

Ms. Moore Johns seeks $125 as counsel fee for a total of 54 hours, consisting of 46 hours for preparation (including preparation for the pre-hearing, for a private mediation, and for the arbitration), 4 hours for attendance at the pre-hearing, and 4 hours for attendance at the hearing.

The maximum of $150 has been awarded in a number of recent cases. Arbitrator Palmer considered the complexity of a claim and access to justice principles in Tustin and Canadian General Insurance Group²:

[T]he $150 hourly rate can be awarded equally in circumstances where the claim is complex and requires superior skills of representation or in circumstances where an experienced advocate has attended on a hearing, leaving a sizeable gap between his or her fees per hour and the hourly rates accorded under the Legal Aid Act.

Arbitrator Palmer also based the $150 award on the fact that "[s]ome of the issues at the hearing were novel. Further, the issues in dispute were of considerable importance" to the Applicants.

Arbitrator Killoran held that the maximum rate is not limited to the most senior members of the legal profession.³ I held in Warwick⁴ that a consideration of the skills of a representative is not necessarily limited to what happened immediately before or at arbitration for the purposes of setting the hourly rate.

In cases where these factors are not present or are not as strong, a lower rate will be awarded. For instance, Arbitrator Sampliner awarded $125 where counsel had asked for $150:

Based on Mr. Demeo's past experience with this Tribunal and the professional manner that he handled the hearing, I am willing to accept he has experience handling no-fault benefit claims. However, I cannot attribute the maximum rate to him based only on his self-characterization, his manner at the hearing or the complexity of the issues.⁵

Ms. Vogdanou's claims were for various supplementary medical and rehabilitation benefits as well as for some care costs for the first months of 2000. Ms. Moore Johns' counsel fee included preparation for the pre-hearing, a private mediation, and the arbitration. However, I find that the issues do not appear to be particularly novel or complex, certainly not in comparison to the complexities in the Warwick case. Therefore, I find that the main factors supporting this claim for an enhanced rate would be based on expertise and access to justice principles. Ms. Moore Johns advised that she was called to the Bar in 1995 and spends 35 percent of her time on medical malpractice and the rest on statutory accident benefits and tort claims.

In Matichuk,⁶ Arbitrator Baltman awarded $110 to counsel called to the Bar for over 15 years in a case where the issues were not complex. Ms. Moore Johns is a more junior member of the Bar. However, in light of the principles of access to justice that have been expressed, I find that an appropriate hourly rate to be paid by Canadian General for the services of Ms. Moore Johns is also $110.

As noted above, the parties agreed on 54 hours for preparation and attendance. I find that Canadian General shall pay $5,940 plus GST for the services provided by Ms. Moore Johns.

Law Clerk Fee:

In her counsel's "Bill of Costs," Ms. Vogdanou claimed 56 hours at $60 per hour for the assistance of a law clerk in preparation for the pre-hearing, private mediation and hearing. At this hearing, Ms. Moore Johns reduced that claim to $40.

The Dispute Resolution Expenses Schedule⁷ does not appear to deal directly with fees for clerks. The closest approximation is in s.3.1, which deals with agent's fees, and Rule 78.2, which provides as follows:

The maximum amount that may be awarded to an insured person or an insurer for agent's fees is an amount calculated using the hourly rates established under the Legal Aid Services Act, 1998 for law clerks, articling students and investigators.

That rate is $23 and has been used in other cases as the "Legal Aid Rate" for law clerks.⁸ I find that the basis for the payment of a law clerk must be as part of the legal fees in section 3 of the Dispute Resolution Expenses Schedule. Although there is no direct limitation of the clerk fee, I find it appropriate to consider the Legal Aid Rate for agents as an appropriate rate to consider as the rate applicable to law clerks. I see no reason why a higher hourly rate should apply to a law clerk acting as the counsel's assistant than to a law clerk acting as the Applicant's actual representative, at least in the absence of some other factors.

Law students and law clerks have received rates higher than $23 in cases such as Oppedisano⁹and Olsynko.¹⁰ However, I heard nothing to suggest that the law clerk here did anything more than any other law clerk would do in assisting counsel to prepare for the hearing, such as preparing the briefs and materials for the hearing and briefing witnesses.

I allow $23 as the hourly rate for the law clerk. As noted above, the parties agreed on the 56 hours for preparation time claimed. I find that Canadian General shall pay $1,288 plus GST for the services of the law clerk.

November 19, 2001

David J. Evans Arbitrator

Date