Neutral Citation: 2004 ONFSCDRS 100

FSCO A03-000974

BETWEEN:

ANWAR KHAWAJA

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: William J. Renahan

Heard: May 17, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Khawaja did not appear Corinne P. Habkirk, Barrister and Solicitor, for ING Insurance Company of Canada

Issues:

The Applicant, Anwar Khawaja, claimed that he was injured in a motor vehicle accident on June 17, 2002. ING Insurance Company of Canada ("ING") refused to pay statutory accident benefits, payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Khawaja applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Khawaja entitled to receive a weekly income replacement benefit, pursuant to section 4 of the Schedule, from June 25, 2002 and ongoing?
What is the amount of weekly income replacement benefit that Mr. Khawaja is entitled to receive pursuant to section 6 of the Schedule?
Is Mr. Khawaja entitled to receive a medical benefit for chiropractic treatment, massage, physiotherapy, psychological treatment and treatment plan, transportation and assistive devices claimed pursuant to section 14 of the Schedule?
Is Mr. Khawaja entitled to attendant care benefits in the amount of $510, pursuant to section 16 of the Schedule?
Is Mr. Khawaja entitled to payments for housekeeping and home maintenance services in the amount of $1,008, pursuant to section 22 of the Schedule?
Is Mr. Khawaja entitled to payment for the cost of examinations in the amount of $275, pursuant to section 24 of the Schedule?
Is ING liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Khawaja?
Is either party liable to pay the other's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Khawaja entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

The application for arbitration is dismissed.
Mr. Khawaja shall pay ING expenses of the arbitration proceeding in the amount of $2,096.55.

EVIDENCE AND ANALYSIS:

On April 23, 2004, counsel for the parties appeared on two motions. Mr. Khawaja's lawyer, Kevin Wolf, asked for an order that he be removed as solicitor. Mr. Khawaja did not appear on the motion. Mr. Wolf's secretary deposed in an affidavit that Mr. Khawaja had told Mr. Wolf that he was leaving the country, had no intention of returning to Canada in the near future and was not interest in the pending arbitration. ING asked for an order dismissing the arbitration. The arbitrator permitted Mr. Wolf to withdraw and refused to dismiss the arbitration.

Mr. Khawaja was present at the pre-hearing of this matter when the arbitrator set the hearing date of May 17, 2004. As well, the Financial Services Commission mailed a Notice of Hearing to Mr. Khawaja at the last address he provided the Commission. Mr. Khawaja did not appear at the hearing.

On the basis of the affidavit evidence that Mr. Khawaja was not interested in this arbitration and because of his failure to appear and give evidence at this arbitration, I dismissed his application for arbitration.

EXPENSES:

The criteria for determining entitlement to and amount of expenses of the arbitration proceeding are set out in subsection 12(2) of Ontario Regulation 664, R.R.O. 1990, as amended by Ontario Regulation 275/03 (the "Expense Regulation"). Having regard to those criteria, I order Mr. Khawaja to pay ING its expenses of the arbitration proceeding.

Ms. Habkirk's bill of costs includes 17 hours for preparation and attendance at the pre-hearing, the motion and the hearing at $73.87 per hour. I find these hours reasonable. The bill also includes 12 hours at $43 per hour for travel time. ING's counsel is located in London and drove to Toronto for the pre-hearing, the motion and this arbitration. She explained that her client, as represented by the adjuster, was in London, and that Mr. Khawaja probably took out the policy in London.

Under Rule 78 of the Dispute Resolution Practice Code (Fourth Edition, Updated October 2003) (the "Code”), the maximum amount that I may award for legal fees is an amount using the hourly rates established under the Legal Aid Services Act, 1998 for professional services in civil matters before the Ontario Superior Court of Justice. Section 23 to Schedule 2 to the Legal Aid Regulations allows, with the approval of the area director of legal aid, travel time at $43 per hour. The question is whether travel time under the Legal Aid Services Act, 1998 is included in an amount that I may award for legal fees under the Code.

I find a direct relationship between the words "hourly rates in civil matters before the Superior Court of Justice" as they appear in the Code and similar words used in Schedule 2 to the Legal Aid Regulations to establish the base hourly rate of $70.35 per hour. I do not see the same relationship in the description of travel time in the Legal Aid Regulations. Further, travel time under the Legal Aid Regulation is in the discretion of the legal aid area director. Because of these differences, I am not satisfied that the words "hourly rates in civil matters before the Superior Court of Justice," as used in Rule 78 of the Code, incorporates the legal aid rate for travel time in the Legal Aid Regulation. Therefore, I do not allow $516 claimed for travel time. I allow a total fee of $1,255.79 plus $87.90 GST.

In her disbursements, counsel claims the $3,000 filing fee ING paid the Commission to respond to the application. The filing fee is not a disbursement under the Expense Regulation. It is a separate issue recoverable under the former section 282(11.2) of the Insurance Act. Since it was not identified as an issue in this arbitration, I do not allow it.

I allow the other disbursements in the amount of $752.86 for a total award of $2,096.55.

June 24, 2004

William J. Renahan Arbitrator

Date