FSCO A97-001771

BETWEEN:

WAYNE CLIPPERTON

Applicant

and

ZURICH NORTH AMERICA CANADA

Insurer

DECISION ON EXPENSES (addendum)

Before: David J. Evans

Heard: By written submissions received July 19, August 13, and August 26, 2002.

Appearances:

Gordon Good for Mr. Clipperton

Ian M. Boundy for Zurich North America Canada

Issues:

The Applicant, Wayne Clipperton, was injured in a motor vehicle accident on February 8, 1996. In a decision dated December 29, 2000, I dealt with his claims for statutory accident benefits under the Schedule.¹ Subsequently, in a decision dated June 25, 2002, I determined Mr. Clipperton's entitlement to expenses, except for the GST owing on disbursements.

Mr. Clipperton then served and filed a "Bill of Costs on Assessment," seeking reimbursement of expenses incurred at the assessment hearing. I ordered the matter to proceed by written submissions, and after Zurich set out its objections to the Bill, Mr. Clipperton replied. In his reply, he also included a recalculation of the GST on disbursements.

Accordingly, the issues in this continued hearing are:

What is the GST owing on disbursements?
Is Mr. Clipperton entitled to his expenses incurred in respect of the assessment hearing?

Result:

Mr. Clipperton is entitled to GST on disbursements of $711.60.
Mr. Clipperton is entitled to expenses incurred in respect of the assessment hearing of $481.50.

EVIDENCE AND ANALYSIS:

GST:

As noted, Mr. Clipperton served his GST recalculation with his Reply. I afforded counsel for Zurich the opportunity to respond to the recalculation. However, he indicated by fax and e-mail on September 6, 2002, that Zurich had "no submission with respect to GST." Accordingly, I allow the GST as recalculated. Mr. Clipperton is entitled to GST of $711.60.

Expenses of the Assessment:

Although services subsequent to an arbitration hearing — such as preparation for and attendance at an assessment hearing — are compensable under section 3(1)4 of the Dispute Resolution Expenses Schedule,² I would expect claims for these services to be raised at the assessment hearing itself. Thus, all the claims for expenses could be dealt with at one time. However, since the GST issue kept the assessment open, I will not consider the matter further. Nonetheless, I will not repeat all the expense criteria I set out in the first assessment decision, as this decision is really an addendum to it.

Zurich submitted that, as I allowed less than Mr. Clipperton claimed for expenses but more than Zurich offered, the results were divided, and each side should bear its costs. However, the major dispute between the parties at the assessment was the higher hourly rate for Mr. Good. I allowed the maximum $150, which Mr. Good submitted resulted in a difference of over $11,700 in the assessment. Accordingly, in light of Mr. Clipperton's success on this point, I allow him the expenses of the assessment hearing as well.

Mr. Clipperton claims 5.5 hours including drafting, research, preparation of a factum, preparation for the hearing and attendance at the hearing (approximately one hour, by teleconference). He also claims $46.55 inclusive of GST for disbursements, namely photocopying the factum and eight FSCO cases. The factum and the cases related entirely to the hourly rate for counsel.

Zurich objects that the preparation and service of the bill of costs could and should have been performed by a clerk, at a much lower hourly rate. It also objects that an experienced litigator should not need over four hours of preparation time, where there were no difficult or complicated legal issues, and that the factum was unnecessary.

I find that this was a straightforward case, especially since the focus of counsel's preparation was only on the one issue of the fee claimed. In fact, during the expense hearing, Zurich raised other objections, and counsel — presumably due to his experience — was able to respond effectively to them. Although experienced counsel may also be reimbursed for research, there has to be some proportion to the hearing as a whole. I find the total amount of hours claimed, including the preparation of the bill itself (which, as Zurich pointed out, could have been prepared by a clerk), to be excessive. Accordingly, I award one hour for the hearing and two hours for preparation.

As for the disbursements, I can only assume (since no invoices were provided) that the largest proportion of the photocopying costs related to copying the cases. I do not find that this disbursement was necessary, as the cases are well known and arbitrators have full access to our decisions. Photocopying of cases from other tribunals or from the courts may be useful, and in certain circumstances reproducing our cases may be useful as well, but I find the photocopying in this case was excessive. Accordingly, I award nothing towards the photocopying.

I find that Mr. Clipperton is entitled to a total of three hours of expenses at the $150 rate, for a total of $450. GST in addition is $31.50, for a grand total of $481.50.

September 24, 2002

David J. Evans

Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 153