FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2004 ONFSCDRS 184
FSCO A03-001207 and A03-001173
BETWEEN:
MARYAN A. NUR and FOWSIA ADEN
Applicants
and
WESTERN ASSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
Jeffrey Rogers
Heard:
By telephone conference call on November 5, 2004.
Appearances:
Mohammed Muslim for Ms. Nur and Ms. Aden
Christopher J. Schnarr for Western Assurance Company
Issues:
The Applicants, Maryan A. Nur and Fowsia Aden, claimed that they were injured in a motor vehicle accident on January 18, 2003. In a decision dated July 20, 2004, I dealt with their claims for statutory accident benefits under the Schedule.1 I also ordered the Applicants to pay Western Assurance Company ("Western") its expenses and that the parties could request a hearing on the amount to be paid, if they were unable to agree. The parties were unable to agree and Western requested a hearing.
The issue in this further hearing is:
- What is the amount of expenses that each Applicant is required to pay to Western?
Result:
- Each Applicant shall pay Western its expenses in the amount of $2,743.30.
EVIDENCE AND ANALYSIS:
Mr. Schnarr delivered Western's Bill of Costs on August 17, 2004, claiming legal fees of $2,861.69 and disbursements of $2,265.97, plus GST. The hearing took two and a half days. The legal fees are based on 11.10 hours of preparation for the hearing by counsel and 10.0 hours by a clerk, plus 17.0 hours for counsel's attendance at the hearing. The total Bill is $5,486.60. The hourly rate claimed is the Legal Aid rate for Mr. Schnarr, based on his experience.
Counsel for the Applicants did not respond to the Bill as required by Rule 79(2)(b) of the Dispute Resolution Practice Code. Counsel did not question the reasonableness of the hours or the disbursement claimed.
However, counsel submitted that I have the jurisdiction to limit the amount awarded. The submission was not based on any provision in the Expense Regulation2 It was submitted that I could limit the amount based on concepts of general fairness. It was submitted that I take into account that the Applicants are impecunious, made their applications in good faith and conducted the hearing in an expeditious manner. Counsel suggested that $1,000.00 per Applicant would be fair.
I see nothing in the Expense Regulation that confers the jurisdiction that counsel suggested and I can find no other source of that jurisdiction. The criteria to be considered on entitlement to expenses are set out in section 12 of the Regulation. I can consider no others. I note that the amount claimed for fees is already reduced by its restriction to the Legal Aid rate. I find the number of hours claimed, the rate and the disbursements to be reasonable. Since the applications were heard together without significant difference in the time spent on each claim, I find the Applicants to be each liable for one half of the claimed expenses.
December 8, 2004
Jeffrey Rogers
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 184
FSCO A03-001207 and A03-001173
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARYAN A. NUR and FOWSIA ADEN
Applicants
and
WESTERN ASSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Maryan A. Nur shall pay Western its expenses in the amount of $2,743.30.
Fowsia Aden shall pay Western its expenses in the amount of $2,743.30.
December 8, 2004
Jeffrey Rogers
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Ontario Regulation 664, R.R.O. 1990, as amended by Ontario Regulation 275/03.