Michelle LaCroix v. Elma Mutual Insurance Company, 2002 ONFSCDRS 34

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2002 ONFSCDRS 34

FSCO A99-000158

BETWEEN:

MICHELLE LACROIX Applicant

and

ELMA MUTUAL INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Lawrence Blackman

Heard: Written submissions were received in November and December 2001. Telephone conference calls were conducted on November 16, 2001 and January 11, 2002

Appearances: Jadranka Cavrak for Ms. LaCroix Chris Blom for Elma Mutual Insurance Company

Issues:

The Applicant, Michelle LaCroix, was injured in a motor vehicle accident on January 22, 1995. The parties disagreed on various entitlement and quantum issues under the Schedule.¹ A pre-hearing discussion was held on August 17, 1999. The following issues were identified in the subsequent September 8, 1999 pre-hearing letter:

(a) entitlement to weekly income replacement benefits ongoing from March 1997;

(b) the amount of the weekly income replacement benefit;

(c) entitlement to payment of supplementary medical benefits, including physiotherapy and psychological expenses;

(d) entitlement to payment of rehabilitation expenses, including a case manager, a job site analysis and social and vocational services;

(e) entitlement to payment of housekeeping and home maintenance services;

(f) entitlement to payment of the $1,016 account of DEAHY Medical Assessments Inc.;

(g) entitlement to a special award;

(h) entitlement to interest on any overdue amounts; and,

(i) the entitlement of either party to their legal expenses of the arbitration.

A four-day arbitration hearing was scheduled for June 5, 6, 7 and 8, 2000. The matter, however, settled on or about June 2, 2000, without the necessity of a hearing. By letter dated June 2, 2000, Mr. Blom, counsel for Elma Mutual Insurance Company ("Elma Mutual"), set out the terms of the settlement, which included:

(e) the claim for expenses shall be submitted to the commission for assessment in accordance with the Dispute Resolution Practice Code (I suggest you prepare an itemized list of the claims for fees and disbursements, so that I may respond to it).

By letter dated April 17, 2001, Ms. Cavrak, counsel for the Applicant, provided Mr. Blom with the Applicant's Statement of Account dated April 16, 2001, as well as copies of invoices of the Applicant's out-of-pocket disbursements.

The parties agree, and I find, that the Dispute Resolution Practice Code (Third Edition, April 15, 1997) (the "Code") applies to this case.

At the initial November 16, 2001 expense hearing, the Insurer confirmed, after some discussion, that there was indeed agreement that the Applicant was entitled to her expenses of the arbitration proceeding and that the expense issue was restricted to the question of quantum. Elma Mutual maintains, however, its position that this arbitration "amounted to an abuse of process" in that if the Applicant had responded in a timely manner to "the early and reasonable requests on behalf of the insurer, for the production of appropriate information and documentation," the matter could have been resolved without the necessity of an arbitration proceeding. Elma Mutual submits that this should be taken into account when assessing the Applicant's expenses.

In my November 19, 2001 letter, I set out time-frames (agreed to by the parties) for the Insurer to identify those items in the Applicant's Statement of Account which it disputed (and the reasons for same) and for the Applicant to provide her response (including copies of any required supporting documentation). I also noted in the agreement that the Insurer was to pay the Applicant, by December 7, 2001, those expenses that it did not dispute.

Accordingly, the issue in this expense hearing is:

1. What is the quantum of Ms. LaCroix's legal expenses to which she is entitled in respect of this arbitration proceeding?

Result:

1. Ms. LaCroix is entitled to $11,400.66 in respect of her legal expenses of this arbitration proceeding.

EVIDENCE AND ANALYSIS:

Summarized, the Applicant's Statement of Account is as follows:

Mr. Henry Goldentuler: 17.0 hours @ $75.38 per hour = $1,281.46

Mr. Larry Levine 28.95 hours @ $67.00 per hour = 1,939.65

Ms. Jadranka Cavrak 23.8 hours @ $67 per hour = 1,594.60

GST on legal fees = 337.10

Disbursements = 7,368.08

Total $12,520.89

Detailed specifics of the work done by Mr. Levine and Ms. Cavrak are provided. Only the following broad generalities are provided for Mr. Goldentuler's hours:

To review mediation application To file review To meetings with client To draft application for arbitration To attend pre hearing To review medical documentation To instructions to Larry Levine To instructions to Jadranka Cavrak To review correspondence To prep file for arbitration

There is no dispute regarding the hourly rates claimed by the Applicant's counsel.

The Insurer has two alternative arguments with which it disputes the Applicant's Account.

The Insurer submits that Ontario Regulation 664, R.R.O. 1990, as amended, applies to the issue of the quantum of expenses as well as to the question of entitlement to expenses. The Insurer relies on the following provisions of section