Neutral Citation: 2002 ONFSCDRS 190
FSCO A98-000514
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HELEN SIMOPOULOS
Applicant
and
GENERAL ACCIDENT ASSURANCE CO. OF CANADA
Insurer
DECISION ON EXPENSES
Before:
Judith Killoran
Heard:
Submissions received by November 6 and October 23, and a hearing on September 18, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
George L. Argiris and Robert Kostyniuk for Mrs. Simopoulos
Gregory P. Heckel for General Accident Assurance Co. of Canada
Issues:
The Applicant, Helen Simopoulos, was injured in a motor vehicle accident on December 5, 1993. An arbitration hearing was conducted on April 25 and 26, 2000 before Arbitrator Joachim. After the second day of hearing on April 26, 2000, the parties settled all outstanding issues except expenses.
The issue in this further hearing is:
- What is the amount of expenses to which Mrs. Simopoulos is entitled in respect of this arbitration hearing?
Result:
Mrs. Simopoulos is entitled to $6,750 plus GST in legal fees and $5,751.50 plus applicable GST for disbursements related to Mr. Argiris' account.
Mrs. Simopoulos is entitled to $11,783.20 plus GST in legal fees and $4,216.59 plus applicable GST in disbursements related to Mr. Kostyniuk's account.
EVIDENCE AND ANALYSIS:
Entitlement to Expenses
The parties agree that Mrs. Simopoulos is entitled to expenses. They disagree about the quantum to which she is entitled.
Subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8, provides that:
The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.
Paragraph 12(2) of Ontario Regulation 664, as amended, sets out the criteria to be considered in determining an award of expenses. These criteria are replicated in the Dispute Resolution Practice Code (Third Edition, April 15, 1997) (the "Code"). They are:
Each party's degree of success in the outcome of the proceeding.
Conduct of the insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders.
Whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.
The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.
If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of the arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the response to the offers, having regard to the result of the proceeding.
Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.
I have taken the above criteria into account when considering the parties' submissions about expenses.
Mr. Argiris' Legal Fees:
Subsection 282 (11) of the Insurance Act, provides the following:
(1) The legal fees payable by the insured person or the insurer for the following matters may be awarded:
For all services performed before an arbitration, appeal, variation or revocation hearing.
For the preparation for an arbitration, appeal, variation or revocation hearing.
For attendance at an arbitration, appeal, variation or revocation hearing.
For services subsequent to an arbitration, appeal, variation or revocation hearing.
(2) The number of hours for which legal fees may be awarded shall be determined by the arbitrator, having regard to the criteria set out in subsection 12 (2) of this Regulation.
(3) The maximum amount that may be awarded for legal fees is the amount calculated using the hourly rates set out in the Dispute Resolution Practice Code published by the Ontario Insurance Commission (now the Financial Services Commission of Ontario), as it may be amended from time to time.
Rule 76.1 of the Code provides that the maximum amount for legal fees is calculated using the hourly rates established under the Legal Aid Services Act, 1998 for professional services in civil matters, adjusted to include any experience allowance. 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."
Mrs. Simopoulos had two legal counsel representing her in the dispute resolution process. Mr. Argiris, her first counsel, was retained from January 8, 1994 to December 31, 1998. However, the mediation application was not filed until October 22, 1997, which I find affects the allowable legal fee. Closer to the hearing, Mrs. Simopoulos was represented by Mr. Kostyniuk.
Mr. Argiris submitted his dockets for 114.58 hours on this file for both torts and accident benefits.1 He claimed that 87 hours related to the preparation of the accident benefits file.
I have reduced Mr. Argiris' time to 45 hours to reflect that the mediation application was not filed until October 22, 1997. Based on Mr. Argiris' expertise and experience, I shall set his fees at the rate of $150 per hour.
Mrs. Simopoulos is entitled to $6,750 plus GST in legal fees with respect to Mr. Argiris' account.
Mr. Argiris' Disbursements
In a letter dated October 23, 2002, Mr. Argiris claimed an unpaid balance of $5,130 for medical documentation.2 This claim is supported by an itemization of disbursements in two briefs.3 I have reduced the amount of Dr. Young's invoice for his report of April 16, 1998 from $2,262.50 to the maximum allowed by the Code which is $1,500. This reduces the disbursements for medical documents to $4,377.50.
Mr. Argiris submitted a total of $1,182 for photocopying and $192 for fax charges. These charges appear reasonable and are allowed.
Mrs. Simopoulos is entitled to a total of $5,751.50 plus applicable GST for disbursements related to Mr. Argiris' account.
Mr. Kostyniuk's Legal Fees
Mr. Kostyniuk billed at the hourly rate of $300. However, as noted above, his maximum entitlement is a $150 per hour, which I am prepared to allow him based on his expertise and experience. Mr. Kostyniuk billed for a total of 80.20 hours. This includes approximately 2.95 hours exclusively for the tort claim and approximately 23 hours jointly for the tort and accident benefits claim. I have reduced Mr. Kostyniuk's hours to 65 hours which entitles him to fees of $9,750.
Mr. Kostyniuk billed 104.5 hours at $75 an hour for a law clerk. The Code does not set a fee for law clerks. Rule 76.2 specifies that:
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.
The hourly rate is $23 and has been referred to in other arbitration cases as the "legal aid rate" for law clerks. As with Arbitrator Evans in Vogdanou,4 I have considered the legal aid rate for agents as a foundation for considering the rate applicable to law clerks. I will allow 80 hours for the law clerk which amounts to $1,840. I will allow 8.4 hours for the law student at a rate of $23 per hour which totals $193.20.
Mrs. Simopoulos is entitled to a total of $11,783.20 in legal fees with respect to Mr. Kostyniuk's account.
Mr. Kostyniuk's Disbursements
Mr. Kostyniuk submitted a bill for disbursements totalling $5,416.74. Included in that bill was $2,461 for Ian Wolloch's economic loss report. According to the schedule for dispute resolution expenses under subsection 282(11) of the Act, paragraph 5(5) restricts the amount of expenses for the preparation of a report to a maximum of $1,500. Therefore, $961 shall be subtracted from Mr. Wolloch's account. In his account, Dr. Gerald Young has claimed $700 for preparation time. Paragraph 5(4) sets $500 as the maximum for an expert witness's preparation time. Mr. Kostyniuk acknowledged that the charge of $15.00 for a process server related to the tort claim. After subtracting these three items, Mr. Kostyniuk's total disbursements equal $4,216.59.5
Mrs. Simopoulos is entitled to a total of $4,216.59 plus applicable GST in disbursements related to Mr. Kostyniuk's account.
CONCLUSION
Mrs. Simopoulos is entitled to a total of $6,750 plus GST in legal fees and a total of $5,751.50 plus applicable GST in disbursements with respect to Mr. Argiris' account.
Mrs. Simopoulos is entitled to a total of $11,783.20 plus GST in legal fees and a total of $4,216.59 plus applicable GST in disbursements with respect to Mr. Kostyniuk's account.
December 2, 2002
Judith Killoran
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 190
FSCO A98-000514
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HELEN SIMOPOULOS
Applicant
and
GENERAL ACCIDENT ASSURANCE CO. OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mrs. Simopoulos is entitled to $6,750 plus GST in legal fees and $5,751.50 plus applicable GST for disbursements related to Mr. Argiris' account.
Mrs. Simopoulos is entitled to $11,783.20 plus GST in legal fees and $4,216.59 plus applicable GST in disbursements related to Mr. Kostyniuk's account.
December 2, 2002
Judith Killoran
Arbitrator
Date