Neutral Citation: 2005 ONFSCDRS 68

FSCO A04-001585

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SASE NARINE BASDEO

Applicant

and

CITADEL GENERAL ASSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before:

David Muir

Heard:

Written submissions received by May 6, 2005 and a telephone conference call on May 13, 2005.

Appearances:

Patrick DaSilva for Mr. Basdeo

Claude Blouin for Citadel General Assurance Company

Issues:

The Applicant, Sase Narine Basdeo, was injured in a motor vehicle accident on October 7, 2003. In a decision dated March 7, 2005, I dealt with a preliminary issue raised by The Citadel in which I considered the application of section 59 of the Schedule¹ to Mr. Basdeo's claims to benefits. I found in favour of Mr. Basdeo and made the following orders:

The Citadel is required to pay benefits to Mr. Basdeo in accordance with section 59(5) of the Schedule, pending the resolution of the dispute respecting Mr. Basdeo's entitlement to WSIB benefits.
The Citadel shall pay Mr. Basdeo's reasonable expenses of this preliminary issue hearing.

The issue in this further hearing is:

What is the quantum of expenses to which Mr. Basdeo is entitled, incurred in respect of this arbitration hearing? In particular, what is the maximum hourly rate that can be awarded for his representative.

Result:

Mr. Basdeo is entitled to expenses for fees of his representative calculated in accordance with Rule 78.2 of the Dispute Resolution Practice Code.

The parties are unable to agree as to the quantum of expenses. The dispute between them depends entirely on the appropriate hourly rate which can be paid for Mr. DaSilva's services.

The Citadel states my discretion to award expenses for agent's fees is established by Rule 78.2 of the Code which provides that the maximum amount which may be awarded for an agent's fees is calculated using the hourly rates under the Legal Aid Services Act, 1998 for law clerks, articling students and investigators.

Mr. DaSilva states that I have some discretion to award a higher hourly rate under Rule 78.1, up to $150. Mr. DaSilva states that he is an experienced para-legal with 14 years' experience dealing with these types of matters. He also states that the Rule respecting agent's fees in 78.2 contemplates law clerks working under the supervision of, or in assistance of counsel.

Mr. DaSilva is not working with counsel and was Mr. Basdeo's sole representative in this matter.

I agree with the submission of Mr. Blouin for The Citadel. The Rule, although not entirely clear, taken as whole, distinguishes between legal fees in 78.1 and the fees of an agent in 78.2.

While the use of the term legal fees in Rule 78.1 could be more precise and arguably might be thought to include the fees of an agent representing an individual in a legal proceeding, it is reasonably clear that 78.1 as a whole was intended to apply to the fees of a lawyer. Moreover, it strains a fair reading of 78.2 to conclude that it applies only to agents working under the supervision or in assistance of counsel as Mr. DaSilva argues.

Accordingly, I agree with the position of The Citadel and concur in their calculation of the expenses that may be awarded to Mr. Basdeo as set out in Mr. Blouin's letter dated May 3, 2005.

Accordingly, Mr. Basdeo is entitled to his expenses in the amount of $834.07, including G.S.T.

May 20, 2005

David Muir Arbitrator

Date