Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 125
FSCO A04-000020 and A04-000006
BETWEEN:
FAISAL MOHAMED and SAFIYA YUSUF
Applicants
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
DECISION ON EXPENSES
Before: Fred Sampliner
Heard: Written submissions from Guarantee received June 29, 2005.
Appearances: Majid Yazdani for Mr. Mohamed Keri Wilson for Guarantee Company of North America
Issues:
On June 6, 2005, I dismissed the Applicants' claims for accident benefits under the Schedule1, and requested submissions from the parties on the issue of expenses. Guarantee claims that the Applicants should pay $9,309.94 for its expenses of this arbitration. I received no submissions from either of the Applicants.
The question is:
- Is Guarantee entitled to its expenses of the arbitration process under subsection 282(11) of the Insurance Act, and what portion is allowed?
Result:
- Guarantee is entitled to its expenses of this arbitration in the amount of $4,720.75.
EVIDENCE AND ANALYSIS:
The statutory authority2 to award Guarantee's $3,000 assessment fee that it paid to participate in this arbitration process was revoked on October 1, 2003. I find no jurisdiction to award Guarantee the $3,000 assessment fee in this arbitration.
I have considered Guarantee's claim for its expenses of this arbitration considering the criteria for awarding expenses.3 The Applicants did not withdraw their claims, causing an unnecessary hearing of Guarantee's evidence that they did not contest. Those factors together with Guarantee's success in the outcome causes me to find that the Company is entitled to it expenses of the arbitration.
I assess the quantum of Guarantee's expenses using the Expense Regulation.4
Guarantee's claim for five and half hours lawyer/clerk time for initial review, consultation and preparation of the pleadings is excessive based on the Insurer's minimal half-page response which briefly states it relies on expert opinions that the claims are fraudulent. Based on this fact, I allow an hour for the lawyer and one half hour for the clerk's time to review the file and prepare the response.
Guarantee's preparation times for the pre-hearing and hearing are likewise excessive given the simplicity of the issues. I allow one of the two hours claimed for Guarantee's lawyer to prepare for the pre-hearing and the same amount plus the claimed one hour law clerk time for hearing preparation.
The four hours Guarantee claims for its lawyer's attendance at the pre-hearing and hearing are reasonable, along with the listed three hours for lawyer and one hour clerk time to deal with communications. However, I deny the four hour lawyer travel time to these Toronto events because Guarantee has not put forward any reasonable justification for retaining London counsel to handle a case in Toronto.
Guarantee claims that it paid $500 to its two expert witnesses in preparing for the hearing, but did not submit any supporting documentation. While I am prepared to approve that Guarantee paid the $1,500 maximum under the Expense Regulation for both experts' reports without bills, these witnesses mostly read their notes, and did not demonstrate they extensively reviewed their evidence beforehand. I deny the $500 preparation fees, but allow the $3,000 claimed expense for Guarantee's two expert reports, $800 total for the two hours attendance by each expert at the hearing ($200/hr x 2hrs x 2 expert witnesses), $20 courier fees and $104.55 for photocopying.
In total, Guarantee has ten hours of lawyer time at the legal aid rate of $73.87 per hour, together with two and a half hours law clerk time at $23 per hour. I find Guarantee is entitled to $796.20 for its legal fees, plus $3,924.55 for disbursements.
September 7, 2005
Fred Sampliner Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 125
FSCO A04-000020 and A04-000006
BETWEEN:
FAISAL MOHAMED and SUFIYA YUSUF
Applicants
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Mohamed and Ms. Yusuf shall pay $4,720.75, jointly and severally, to Guarantee Company of North America for its expenses of this arbitration.
September 7, 2005
Fred Sampliner Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Subsection 282(11.2) of the Insurance Act
- Rule 75 of the Dispute Resolution Practice Code (4th ed. October 2003)
- Section F of the Dispute Resolution Practice Code (4th ed. October 2003)