Evtim Videnov v. Royal & SunAlliance Insurance Company of Canada, 2003 ONFSCDRS 59

Neutral Citation: 2003 ONFSCDRS 59

FSCO A98-000021

BETWEEN:

EVTIM VIDENOV

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON EXPENSES

Before:

Fred Sampliner

Heard:

Parties' written submissions received by December 10, 2002.

Appearances:

Ivo Videnov for Mr. Evtim Videnov

Derek Greenside for Royal & SunAlliance Insurance Company of Canada

In an August 20, 2002 decision, I ordered Royal & SunAlliance Insurance Company of Canada ("Royal") to pay the Applicant, Evtim Videnov, a $185 per week income replacement benefit from August 22, 1994 until December 1, 1994, together with interest under section 68 of the Schedule.¹ The parties notified the Financial Services Commission (FSCO) that they could not agree on whether either party owed the other money pursuant to the August 20, 2002 order, and on Mr. Videnov's claim that Royal should pay his expenses of this arbitration. I reviewed the parties' written submissions.

Does Mr. Videnov or Royal owe money to the other under the August 20, 2002 order?
What, if any, amount is Mr. Videnov entitled to for his expenses of the arbitration?

Royal owes Mr. Videnov $302.92 plus interest under section 68 of the Schedule from September 1, 2002, in order to satisfy the August 20, 2002 order. Mr. Videnov owes no repayment to Royal.
Mr. Videnov is entitled to $5,033.66 for his expenses of the arbitration.

Repayment Request/Setoff:

After Royal sent Mr. Videnov a cheque in payment of the August 20, 2002 award, the company realized that the pre-hearing arbitrator had made an order suspending interest on his benefits. There is no dispute that Mr. Videnov received and cashed the September 3, 2002 cheque in the amount of $17,536.44, representing Royal's calculation of the principal and full interest award.

On October 11, 2002, Royal notified Mr. Videnov's representative that the company claimed he owed $10,863.31 overpayment, most of the statutory interest on the base amount of the benefits awarded. Royal argues that the overpayment should operate as a setoff against Mr. Videnov's claim for his arbitration expenses.²

Royal's claim is predicated on the following interim order from the pre-hearing arbitrator:

...I ruled that no interest is to run from the date of the resumption of the pre-hearing on September 28, 1998 until Mr. Videnov makes himself available for an independent medical examination. If he does not do so, no interest is to run until the date of the hearing, at which time the hearing arbitrator can rule on the issue of interest. [my emphasis]

However, I find the pre-hearing arbitrator's words indicate she made an interim order³ that left in my hands the ultimate question of Mr. Videnov's entitlement to interest. In the result, I find it was within my jurisdiction to decide the entire interest issue.

I also find that I have no jurisdiction to alter or clarify my final order. The Statutory Powers Procedure Act⁴ limits a tribunal's ability to vary its decisions in accordance with its rules. This Tribunal's Code⁵ provided Royal with options to either apply to the Director of Arbitrations for variation of an error⁶ or appeal on a question of law,⁷ but Royal did neither.

The current fourth Code⁸, edition allows arbitrators to clarify final orders if there is no pending appeal.⁹ However, the third edition of the Code was in effect at the time of the pre-hearing in this case, which does not specifically give me the power to vary or clarify the August 20, 2002 decision.¹⁰

Even if I had the authority, I would not be inclined to suspend statutory interest on Mr. Videnov's income replacement benefits. Mr. Videnov had a reasonable excuse for not attending the July 22, 1998 insurer's medical examination because the evidence clearly indicates he involuntarily left the country that month. The file correspondence indicates that both the pre-hearing arbitrator and Mr. Videnov's lawyer were unaware that he had departed. Under those facts, I would find that Mr. Videnov had a reasonable excuse for his failure to attend the insurer's examination, the basis for the interim ruling.

Moreover, this examination would have added little value to the evidence. The chief issue of this arbitration was Mr. Videnov's claim for disability benefits until September 28, 1996. An expert opinion in July 1998 would offer little assistance in evaluating Mr. Videnov's disability level two years earlier. I would be loathe to suspend statutory interest because he did not attend an unnecessary examination.

The order stands as it is written.

Payment of the Order:

I specifically asked the parties to give me their calculations of principal and interest on the award. The issue of whether the order is paid arises as a natural consequence of the issues decided,¹¹ though I have no enforcement authority.

Royal calculated monthly statutory interest until September 28, 1998, the date in the pre-hearing order, but did not provide any monthly interest calculation after that date. Mr. Videnov provided a monthly calculation of the principal and statutory interest for the period after September 28, 1998, and I have nothing to contradict the accuracy of his calculations.

I accept that Mr. Videnov's $17,839.36 figure represents the amount of the awarded income replacement benefits, together with statutory interest until September 1, 2002, the date closest to Royal's September 3, 2002 cheque. Since there is no dispute that Mr. Videnov received $17,536.44, I find that Royal owes Mr. Videnov the $302.92 difference together with applicable statutory interest in accordance with section 68 of the Schedule from September 1, 2002 until paid.

Expenses of the Arbitration:

After considering the appropriate criteria in Rule 73¹² and the Expense Regulation,¹³, I find that Mr. Videnov was relatively successful in the final result, that neither party hindered the conduct of this proceeding, and that their positions were not unreasonable during its course. I further find that there are no written settlement offers, and that the main disability issue was not complex.

Mr. Videnov's success is the determinative factor. I find that he is entitled to his expenses of this arbitration.

Royal argues that Mr. Videnov did not make a timely application for an assessment of his arbitration expenses in accordance with Rule 79.1 of the Code.¹⁴ Royal has cited the wrong edition of the Code.

The relevant Code in effect at the time of the first pre-hearing provides that there must be a decision on entitlement to expenses before Mr. Videnov would be subject to a time limit for an assessment.¹⁵ Since I did not previously make any findings or decide the parties' entitlement to expenses, but do so herein, I find that the assessment of Mr. Videnov's arbitration expenses may proceed.

Mr. Videnov has been represented in this matter by three lawyers, one of whom apparently decided to waive his fees. Mr. Ronald Chapman submitted 10.4 hours of docketed time and $546.64 in disbursements with GST. Mr. R. Brian Foster's two statements indicate he spent 4.6 hours working on the file with $5 in disbursements. Royal expresses no objection to either lawyers' billable hours, and I accept them.

Mr. Foster's request for Mr. Videnov's file from the Ministry of Community and Social Services (COMSOC) shows $174.40 as a quotation for records photocopying, but there is no indication that Mr. Videnov or his representatives received the information, submitted the records as evidence or that either he or any of his representatives paid this fee. I find that the fee for Mr. Videnov's COMSOC record is not an expense of this arbitration, and I do not allow it.

A lawyer's work on an arbitration matter is reimbursable in a range from the $67 an hour, the basic rate under the Legal Aid Tariff, up to $150 for experienced counsel in complex matters. I find that the applicable Legal Aid Tariff for Mr. Chapman is $67 per hour because I have no evidence to indicate he is entitled to an experience increase and this matter was not complex. I find that Mr. Videnov is entitled to $696.80 for Mr. Chapman's legal fee, plus the $546.64 in disbursements.

Mr. Foster's Queen's Counsel designation indicates that he has a great deal more than the 10 years of litigation experience which entitles him to a 25% increase over the basic Tariff rate.

In view of his experience, I find that Mr. Foster's rate is $125 per hour and that Mr. Videnov is entitled to $575 plus the $5 disbursement.

Mr. Videnov submitted a copy of an agreement whereby he apparently engaged Mr. Michael Loughlan, another lawyer, to assist with preparation of the arbitration case, without directly representing him. There is no itemized docket, bill or proof of payment to support Mr. Videnov's claim that Mr. Loughlan rendered $3,000 of services. I am unable to establish compensable time, and find that Mr. Videnov is not entitled to any reimbursement for Mr. Loughlan's services.

Neither has Mr. Videnov provided any documentation to support his claim that his son/agent, Mr. Ivo Videnov, worked 300 hours on this arbitration. His representative's argument that he is entitled to compensation at the rate of $25 per hour for pre-hearing work and $50 per hour for his representation during the hearing is more than the $23 per hour allowed for law clerks under the

Although Mr. Ivo Videnov conducted himself in a professional manner in presenting his father's case at the hearing, and assisted the Tribunal with the arrangements to obtain his father's evidence in Bulgaria by teleconference through an interpreter at the Canadian Consulate, I am not convinced that he exercised greater skill than offered by a trained law clerk. I find that Mr. Ivo Videnov is not trained or accredited as a lawyer, law student or law clerk, but I am willing to allow that his time is appropriately compensable at the $23 per hour rate under the Tariff because he conducted the hearing intelligently.¹⁶

Mr. Ivo Videnov did not submit documentation to support his claim that he worked 300 hours in this matter. He assumed carriage of the file in November 2001, about four months before the hearing commenced, after most of the documents should have been exchanged pursuant to the pre-hearing discussions. In the absence of any supportive docket, and considering the representative's lack of experience, I find that the claim that his agent worked 300 hours is excessive.

Like other arbitrators, I must fall back on the rough use of a ratio between the hearing time and preparation time for the hearing where the time claimed is excessive and there are no substantiating dockets.¹⁷ The range is between one and four hours of preparation time for every hour of the hearing, and I find that the median 2.5 hours of preparation for each hour of hearing time is an appropriate measure in this case.

Between the two one-hour teleconferences with the representatives to arrange Mr. Videnov's evidence from Bulgaria¹⁸ and the five hearing days,¹⁹ I find there were 32.5 compensable hours attributable to the hearing process. In addition, the Tribunal's file shows that Mr. Ivo Videnov made several requests to adjourn the hearing and also sought to amend the claim, for which I am willing to allow five hours.

I find that Mr. Videnov is entitled to compensation for 118.75 hours of representation by his agent, translating into $2,731.25 for representation fees in this arbitration. I also find that Mr. Videnov is entitled to $92 for another four hours of post-hearing work to assemble evidence on the arbitration expenses, arrange the assessment and make written submissions.

There is no signature by the translator on the $800 receipt that Mr. Videnov submits for his Bulgarian to English translation of medical records, and no evidence sets out the hourly rate or other basis for this charge. Mr. Videnov's claim for another $300 for translation of other documents is wholly unsupported by any evidence. I find the claims excessive and allow a total of $50 for Mr. Videnov's document translation services.

Mr. Videnov submits four receipts totalling $301.92 of photocopying charges, which he claims are for copying documents, supplies and preparation of the arbitration briefs. I agree with Royal that there appears to be approximately 200 pages of documents in Mr. Videnov's two briefs, and find that the receipts do not correspond with Mr. Videnov's productions. I allow Mr. Videnov 25 cents per page, for a total of $50 in photocopying reimbursement, $100 for binding and copying the documents, together with the $33.97 shown in the receipt for binder supplies.

Mr. Videnov submitted no documents or evidence to support his claims for $250 of facsimile transmissions, $150 in cell phone usage, $500 for long distance charges and $280 for document certification and sworn testimony, $40 for supplies and postage, costs for Ontario Ministry of Health records and travel/parking expenses in this arbitration. I find that the above claims are not expenses of this arbitration and deny them. I also fail to see how Mr. Videnov's claim of $25 for the use of his home telephone constitutes an expense of this arbitration and deny it as well.

Mr. Videnov also submitted no documents to support his claim for $150 in witness expenses for the appearances of Dr. Timarac and Dr. Alexander at the hearing. These witnesses appeared at the hearing, and in the absence of supporting evidence I grant Mr. Videnov the $53 conduct money for the attendance of these two witnesses.

Mr. Videnov did not claim the $100 arbitration filing fee as part of his expenses of the arbitration process, but I find that he is entitled to reimbursement of this fee because it is paid to the Minister of Finance as a prerequisite for an arbitration. Adding the above allowances together, I find that Mr. Videnov is entitled to $5,033.66 for his expenses of this arbitration, inclusive of disbursements and GST.

April 11, 2003

Fred Sampliner Arbitrator

Date