Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 2006 ONFSCDRS 138
FSCO A02–000161
BETWEEN:
LUCIANO AMATO
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before:
Joyce Miller
Heard:
Written submissions received by June 17, 2006.
Appearances :
Joseph Brian Donnelly for Mr. Amato
Stephen B. Macaulay for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Luciano Amato, was injured in a motor vehicle accident on June 6, 2000. An arbitration hearing was held on February 24, 25, 26, and 27 and April 22, 24 and 25, 2003 wherein I dealt with his claims for statutory accident benefits under the Schedule.1 A preliminary issue hearing was held on March 28, 2003.
I made the following orders, while reserving on the issue of expenses.
On July 18, 2003, I issued a preliminary issue decision with the following orders:
Dr. Deegan's report dated October 11, 2000 with the associated Functional Abilities Evaluation report dated October 10, 2000 shall be entered into evidence.
Dr. Seiden's report of February 25, 2003 shall not be admitted into evidence, nor shall Dr. Seiden be allowed to appear to comment on Dr. Deegan's report.
On December 31, 2003 I issued a decision with the following orders:
Wawanesa shall pay Mr. Amato an income replacement benefit of $400 a week pursuant to sections 4 and 5 of the Schedule from October 25, 2000 and ongoing.
Wawanesa shall pay Mr. Amato interest on past benefits owed pursuant to subsection 46(2) of the Schedule.
Wawanesa shall pay Mr. Amato a special award of $40,000 inclusive of interest pursuant to subsection 282(10) of the Insurance Act.
Wawanesa appealed both decisions. On October 3, 2005 the appeal decision was issued, which held that:
The appeal of the arbitration order, dated July 18, 2003, is dismissed.
The appeal of the arbitration order, dated December 31, 2003, is allowed with respect to paragraph 3 (special award), which is revoked and replaced with the following: Wawanesa shall pay a special award of $10,000, less any amounts already paid.
If the parties are unable to agree on appeal expenses, they may contact me in accordance with Rule 79 of the Dispute Resolution Practice Code.
On November 1, 2005, Mr. Amato's counsel, Mr. Joseph Donnelly, wrote to the Commission requesting, pursuant to Rule 79 of the Dispute Resolution Practice Code2, an appointment to determine the entitlement to and the amount of expenses of the Arbitration Hearing and the Appeal Hearing.
On December 22, 2005, Mr. Amato provided Wawanesa with his Bill of Costs with respect to the Arbitration Hearing. In its response on January 26, 2006, Wawanesa did not contest the substantive entitlement to Mr. Amato's request for expenses: instead, it submitted that:
... Mr. Amato is not entitled to his Arbitration Hearing expenses as he failed, within the 30 days set out in Section 79.1 of the Dispute Resolution Practice Code, to request an appointment to determine his expenses. Arbitrator Miller's Decision is dated December 31, 2003 and, thus, more than two years passed without Mr. Amato requesting a determination of Arbitration Hearing expenses.
In the alternative, we submit that the expenses submitted by Mr. Donnelly for both his and Mr. Costa's preparation time for the hearing are excessive. We further submit that certain of the items listed in the time summaries of Mr. Donnelly and Mr. Costa are not recoverable.
The issues in this further hearing are:
- Is Mr. Amato entitled to an Expense Hearing in respect of the Preliminary Issue and the Arbitration Hearing? If yes, is Mr. Amato entitled to his expenses incurred in respect of this arbitration hearing?
Result:
Mr. Amato is entitled to his expenses for both the Preliminary Issue Hearing and the Arbitration Hearing.
Mr. Amato is entitled to his legal fees for Mr. Donnelly's services in the amount of $29,893 plus GST; the fees for Mr. Costa's services in the amount of $3,915 plus GST and $16,186.53 for disbursements.
Mr. Amato is entitled to his Assessment Expenses in the amount of $1,442.
Issue 1. Is Mr. Amato entitled to an Expense Hearing?
Wawanesa contests Mr. Amato's right to an Expense Hearing on the basis that Mr. Amato failed to request an appointment to determine his entitlement to expenses with 30 days of my decision being issued, pursuant to Rule 79.1 of the Dispute Resolution Practice Code, Fourth Edition Updated — October 2003 (The "Code").
Mr. Amato argues that pursuant to Rules 1.1, 1.3 and 81.1 of the Code, I can exercise my discretion to set aside the 30-day time limit due to the particular circumstances of this case.
In support of his position, Mr. Amato relies on the case of Chafe-Moote and Prudential.3 In that case the applicant's request for an assessment of her expenses was not made within in the 30-day time limit required by the Code. The Applicant's reason for the delay, namely, that she had assumed that the question of expenses would be dealt with in the context of the entire appeal, was accepted by the arbitrator, who exercised her discretion pursuant to Rule 81.1 and set aside the 30-day time limit. Mr. Amato submitted that the case of Chafe-Moote and Prudential was cited in approval by the Director's Delegate in the Appeal case of State Farm Mutual Automobile Insurance Company and Rovella.4
Mr. Amato submitted that he too was under the impression that the postponement of a request for an Expense Hearing pending the determination of an Appeal, was not out of the ordinary practice at the Commission. He further submitted that Wawanesa has not alleged any prejudice and that in fact none exists as no interest can be awarded on expenses. In his view, if there is any prejudice it is to himself in not having received at an earlier time payment of his assessed expenses of the Arbitration Hearing.
Mr. Amato pointed out that within 30 days of the Appeal decision he had applied to have a hearing on the issue of expenses. Accordingly, he requests that I exercise my broad discretion pursuant to Rule 81.1 of the Code and permit the Expense Hearing to proceed.
THE LAW:
Rule 79.1 of the Dispute Resolution Practice Code provides that:
Where an adjudicator has issued an order determining all issues in dispute except expenses, and the parties cannot agree on the entitlement to or amount of the expenses of the proceeding, either party may request, in writing, an appointment before an adjudicator to determine expenses provided that the request is made within 30 days from the date the decision on all other issues in dispute was issued.
Rule 1.1 of the Dispute Resolution Practice Code provides that:
These Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.
Rule 1.3 of the Dispute Resolution Practice Code provides that:
A defect in form or other technical breach will not make a proceeding invalid.
Rule 81.1 of the Dispute Resolution Practice Code provides that:
Subject to the requirements of the Insurance Act and the Statutory Powers Procedure Act, the adjudicator may on such terms as he or she considers just:
(a) set aside any time limit set out in these Rules for doing any act, serving any notice, filing any document or holding any hearing.
(b) decide that any Rule does not apply in respect of a proceeding.
FINDING:
I note that within 30 days of the Appeal decision, Mr. Amato requested expense hearings for both the arbitration and the appeal cases. I agree that on the facts of this case that it was a reasonable assumption on the part of Mr. Amato to wait until the Appeal process was over before dealing with the issue of expenses of the arbitration.
I agree with the Director Delegate's observations in Truong and Lumbermens Mutual Casualty Company wherein she stated:
Nothing in the Dispute Resolution Practice Code prevents the parties from disposing of an arbitration expenses dispute immediately after release of the arbitration decision, but many parties prefer to defer the issue pending appeal.
In State Farm and Rovella the Director's Delegate observed that pursuant to Rule 81.1(a) an arbitrator can exercise his or her discretion to set aside the 30 day deadline for an expense assessment where, for example, the party was occupied preparing for an Appeal and assumed that the question of expenses would be dealt within the context of the appeal.5
In addition, I would note, that when there is an Appeal on a arbitration, it is not unreasonable to delay the issues of expenses as an appeal can change the result of the arbitration order and hence the question of entitlement to expenses.
Accordingly, for these reasons, pursuant to Rule 81.1 of the Code, I exercise my discretion to set aside the 30-day time limit.
Issue 2. Is Mr. Amato entitled to his expenses in respect of the Preliminary Issue and the Arbitration Hearing?
Although Wawanesa does not contest the substantive issue of whether Mr. Amato is entitled to his expenses for the two hearings, for the sake of completeness, I would first like to give my reasons why I find that Mr. Amato is entitled to his expenses for these two hearings:
THE LAW
Subsection 282(11) of the Insurance Act provides:
The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.
The Expense Regulation provides that:
An arbitrator shall, under subsection 282 (11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:
Each party's degree of success in the outcome of the proceeding.
Any written offers to settle made in accordance with subsection (3).
Whether novel issues are raised in the proceeding.
The conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.
The Preliminary Issue Hearing Expenses
For the following reasons, I exercise my discretion to award Mr. Amato his expenses for the Preliminary Issue Hearing.
The issues for the Preliminary Issue were novel issues which had never before been considered in arbitration. The issues dealt with the admissibility of an expert's report when the expert who wrote the report was deceased and whether a report by a doctor who had never seen or examined the applicant could be admitted as a replacement.
Mr. Amato was partially successful on the first issue, in that the report of the deceased doctor was admitted into evidence, but the weight of this evidence would be considered in light of the fact that Mr. Amato did not have the opportunity to cross-examine the expert who had only seen him one time. Mr. Amato was completely successful on the second issue.
Accordingly, for these reasons, I award Mr. Amato his expenses for the preliminary hearing.
Arbitration Hearing Expenses
For the following reasons, I exercise my discretion to award Mr. Amato his expenses for the Arbitration Hearing.
Mr. Amato was completely successful on the issues for arbitration. The Appeal did not question Mr. Amato's entitlement to a Special Award but rather focussed on the amount of the award.
I accept Mr. Amato's submission that he engaged in conduct that tended to shorten the proceedings by choosing, for pragmatic reasons, to withdraw the Attendant Care and Housekeeping issues. Mr. Amato pointed out that the Attendant Care DAC Assessment supported his position for attendant care. It was his counsel's view that the modest amount of money at stake was not worth the time and effort to argue for this claim and that it would be more pragmatic to use the evidence of the Attendant Care DAC to support the more substantial claim of Mr. Amato's inability to work at his pre-accident employment or any employment that he was suited for by reason of education, training or experience. This strikes me as being eminently reasonable given the amount of money at stake on the income replacement and special award issues and the small amount of money at stake in the other two issues.
Accordingly, for these reasons, I find that Mr. Amato is also entitled to his expenses for the main arbitration hearing.
ASSESSMENT OF EXPENSES
Mr. Amato claims legal fees for Mr. Donnelly for 201.29 hours a the rate of $150 an hour plus GST; and 111.9 hours at $45.00 an hour plus GST for Mr. Costa, Mr. Donnelly's law clerk. In addition Mr. Amato claims $20,315.03 for disbursements.
SUBMISSIONS
Wawanesa's Submissions
1. Legal Fees
Wawanesa submits that a 1:1 ratio of preparation time to hearing attendance time would be appropriate in this matter given that the arbitration dealt with only two issues, income replacement benefit and special award. Wawanesa pointed out that on the morning of the hearing Mr. Amato withdrew the issue of entitlement to attendant care benefits and housekeeping expenses and therefore Mr. Donnelly and Mr. Costa, his law clerk overall preparation time should be reduced from 137 hours to 64 hours.
Wawanesa submits that Mr. Donnelly and Mr. Costa have claimed mediation related expenses that amount to two hours for Mr. Donnelly and approximately 29 hours for Mr. Costa. Wawanesa submits that none of the mediation expenses claimed are recoverable.
Wawanesa claims that there was significant duplication in the docketed items of Mr. Costa and Mr. Donnelly.
Wawanesa proposes that Mr. Donnelly be entitled to 128 hours (64 hours preparation time and 64 hours of arbitration hearing time) at the Legal Aid rate of $92.34 per hour.
Regarding Mr. Costa, Wawanesa submits that Mr. Costa should not be entitled to the $45.00 an hour he is claiming notwithstanding that he was awarded this hourly rate by Arbitrator Killoran in Oppedisano and Zurich Insurance Company6, Wawanesa submits that the arbitrator erred in applying an experience allowance to Mr. Costa and noted that it does not appear that the Legal Aid Services Act was argued before her. Accordingly, Wawanesa proposes that Mr. Costa be entitled to 75 hours at the Legal Aid rate of $23.00 an hour.
Mr. Amato's Submissions
1. Legal Fees
(a) Preparation Time
Mr. Amato agrees that the mediation expenses are not recoverable and that Mr. Donnelly should be reduced by two hours. Regarding Mr. Costa's hours, Mr. Amato submits that the time dockets reveal that he spent a total of 24.9 hours for mediation and thereafter his efforts were direct to preparing the commencing and filing of the Application for Arbitration. Mr. Amato submits that his hours claimed should be reduced by 24.9 hours for a net of 87 hours.
Regarding the amount of time claimed for preparation for the hearing by Mr. Donnelly and Mr. Costa, Mr. Amato submits that the time spent was warranted and necessary to an effective presentation of the oral and documentary evidence that was produced at the Arbitration hearing.
Mr. Amato submits that significant time was required to prepare him and his wife for arbitration as neither speaks English. In addition, the death of Dr. Deegan and Wawanesa's attempt to introduce Dr. Seiden's report into evidence resulted in novel issues that had to be dealt with in the middle of the hearing.
Mr. Amato submits that the preparation time expended was reflected in the quality and type of evidence led on his behalf and that the preparation time is further reflected in his success in this arbitration.
Regarding Wawanesa's claim that there was duplication in billing in Mr. Donnelly's and Mr. Costa's accounts, Mr. Amato submits that Wawanesa has not provided any examples of such irregularities. Mr. Amato submits that:
To the extent that Mr. Costa and counsel spent any substantial time together, it was in the presence of Mr. and /or Mrs. Amato where Mr. Costa's services were necessary as a translator. Certainly there are instances where Mr. Costa and counsel would review the file and counsel would impart instructions to Mr. Costa. Those time entries are not substantial and are part of the day to day business of a counsel instructing his law clerk in preparation for a hearing.
Mr. Amato submits that his counsel has provided detailed time dockets to support his claim for legal expenses and that in "the presence of detailed time dockets and the particular circumstances surrounding this Arbitration, that the time spent and incurred ... was reasonable and necessary."
(b) Mr. Donnelly's Hourly Rate
Mr. Amato submits that his counsel is entitled to a rate of $150.00 an hour. Mr. Amato points out that his counsel has been awarded this amount in other matters before the Commission. Specifically, he referred to the decision in Oppedisano and Zurich Insurance Company wherein he relies on the Arbitrator having awarded Mr. Donnelly an hourly rate of $150 based on his expertise, experience and date of call to the bar.
(c) Mr. Costa's Hourly Rate
Mr. Amato claims $45.00 an hour for the services of Mr. Costa, his counsel's law clerk. Mr. Amato submits that In the case of Oppedisano and Zurich Arbitrator Killoran found that Mr. Costa was entitled to $45.00 an hour for his services. In her decision she stated:
I agree with Mr. Donnelly's submissions that Mr. Costa contributed to creating a proper and accurate record and Mr. Oppedisano is entitled, in a multicultural society, not to be penalized due to language difficulties.
Mr. Amato submitted that Mr. Costa has been employed by his counsel for 27 years. He pointed out that:
Mr. Costa is conversant in the Italian and English languages and, given his expertise in accident benefit matters, was able to communicate clearly with Mr. Amato with regard to the ongoing mediation and arbitration process and to provide translation services for Mr. Amato in his preparation for he arbitration hearing.
Mr. Amato further submitted that:
Mr. Costa's rate is a hybrid between the amount allowed under the Legal Aid tariff and what would otherwise have been the cost of having an interpreter present to assist in communicating advice to and receiving instructions from Mr. Amato and in preparing both Mr. and Mrs. Amato to give evidence at the Arbitration Hearing.
Accordingly, Mr. Amato claims that the hourly rate for Mr. Costa's services should be $45.00.
THE LAW
Section 3 of Ontario Regulations 664, R.R.O. 1990, as amended, provides the following:
(1) The legal fees payable by the insured person or the insurer for the following matters may be awarded:
For all services performed before an arbitration, appeal, variation or revocation hearing.
For the preparation for an arbitration, appeal, variation or revocation hearing.
For attendance at an arbitration, appeal, variation or revocation hearing.
For services subsequent to an arbitration, appeal, variation or revocation hearing.
(2) The number of hours for which legal fees may be awarded shall be determined by the arbitrator, having regard to the criteria set out in subsection 12 (2) of this Regulation.
(3) The maximum amount that may be awarded for legal fees is the amount calculated using the hourly rates set out in the Dispute Resolution Practice Code published by the Ontario Insurance Commission or Financial Services Commission of Ontario, as it may be amended from time to time.
Rule 78.1 of the Code provides that:
The maximum amount that may be awarded to an insured person or an insurer for legal fees, is an amount calculated using:
(a) the hourly rates established under the Legal Aid Services Act, 1998 for professional services in civil matters before the Ontario Superior Court of Justice; or
(b) the hourly rate referred to in Rule 78.1(a) adjusted to include, where appropriate, the experience allowance established under the Legal Aid Services Act, 1998;
Where an adjudicator is satisfied that a higher amount for legal fees to an insured person is justified, an hourly rate of up to $150 may be awarded.
In the Assessment Expense decision of Henri and Allstate Insurance Company of Canada,7Arbitrator Makepeace outlined a number of general principles abstracted from arbitration decisions on assessment of expenses. Two of these principles are:
The overriding consideration in fixing arbitration expenses is reasonableness.8
A line-by-line assessment of the expenses claimed is not appropriate. Rather, the Arbitrator should make a global assessment of reasonable expenses.9
These principles have been consistently been followed by other arbitrators. I agree with these principles and I apply them to this case.
FINDINGS:
1. Legal Fees
(a) Mr. Donnelly's Fees
For the following reasons I find that Mr. Amato is entitled to 199.29 hours at a $150 an hour plus GST for the legal services of Mr. Donnelly.
This was not a straightforward case. Along with a claim for income replacement benefits entitlement up to and post 104 weeks, and a special award, this case also addressed the insurer's issues of credibility, and also included a mid-arbitration preliminary issue hearing on novel issues. This case required a great deal of expertise and substantial preparation by both counsel. It was a hard fought case. Wawanesa counsel presented a very thorough and detailed defence which was met with the same thoroughness by Mr. Donnelly.
I find that Mr. Donnelly provided excellent representation for his client. His presentation of the evidence was very detailed, and which, I accept, required a great deal of analysis and preparation. In the end, the thoroughness of his presentation resulted in a successful outcome for his client. It is clear that Mr. Donnelly, who was called to the bar in 1975, has considerable expertise in the area of accident benefit law and many years of experience as counsel. Accordingly, I find that Mr. Donnelly entitled to an hourly rate of $150 per hour.
Mr. Amato claims legal fees for Mr. Donnelly for 201.29 hours, but has conceded that two of these hours for dealing with the mediation should be deducted. Accordingly, his claim for legal fees is reduced to 199.29 hours.
The hearing was held over eight days. I find that eight hours a day of attendance at the hearing for a total of 64 hours, as conceded by the insurer, is reasonable in this case. These hours not only include presentation of the evidence but includes the time needed by Mr. Amato's counsel to consult with him and the other witnesses as well as with Mr. Costa during the course of the hearing.
I also find that 135.29 hours, which is a ratio close to 2:1 hours of preparation to attendance, is more than reasonable in this case. As noted above this was a hard fought case dealing with issues that were complex, novel and subtle. As noted above, counsel for Wawanesa provided a very thorough and detailed defence which clearly required a great deal of preparation. Equally, I find that Mr. Donnelly's presentation of Mr. Amato's case, in the face of this defence, required a great deal of preparation. Mr. Donnelly provided dockets that were precise and thorough and support the hours he claims. Accordingly, I find that Mr. Amato is entitled to his legal fees for Mr. Donnelly's services in the amount of $29,893.50 ($150 an hour for 199.29 hours) plus GST.
(b) Mr. Costa's Fees
Mr. Amato claims fees for Mr. Costa for 111.9 hours, but has conceded that 24.9 of these hours for dealing with the mediation should be deducted. Accordingly, his claim for Mr. Costa's fees is for 87 hours at the rate of $45 an hour.
For the following reasons I find that Mr. Amato is entitled to fees for Mr. Costa for 87 hours at the rate of $45 an hour plus GST.
As noted above, Wawanesa disputes the rate of $45 an hour for Mr. Costa on the basis that the Legal Aid fee for a Law Clerk is prescribed to be $23 an hour.
In the case of Ms. G. and Pilot Insurance Company10, Arbitrator Blackman, on the issue of whether a law clerk's fee is restricted to the Legal Aid rate, made the following findings, which I agree with:
It is correct that subsection 2(2) of the Schedule to Regulation 664 once restricted expenses to the amount allowed under the Legal Aid Services Act, 1998. However, O. Reg. 464/96 revoked subsection 2(2), and substituted in lieu the following under subsection 3(3):
The maximum amount that may be awarded for legal fees is the amount calculated using the hourly rates set out in the Dispute Resolution Practice Code published by the Ontario Insurance Commission or Financial Services Commission of Ontario, as it may be amended from time to time.
I agree with Arbitrator Evans in Clipperton and Zurich North America Canada (FSCO A97-001771, June 25, 2002) that:
...the minimal Legal Aid hourly rate should be more the exception rather than the norm when setting the rate for an experienced counsel acting for an insured.
Ms. Tracy Romanowski, a law clerk, attended with Mr. Rastin throughout these proceedings. I found her to be a very capable professional. Pilot submits that Ms. Romanowski is restricted, as a law clerk, to the $23 an hour allowed under Schedule 3, Item 1, of O. Reg. 107/99, as amended, made under the Legal Aid Services Act, 1998.
I note, again, that Rule 78 of the Code provides that the hourly rate for legal fees (the provision is not restricted to counsel fees) established under the Legal Aid Services Act, 1998 is subject to increase to an hourly rate of up to $150 an hour, where an adjudicator is satisfied that a higher amount is warranted. The $23 an hour for a law clerk is explicitly designated in the Legal Aid Services Act, 1998 as a fee "for lawyers provided services of law clerks, articled students and investigators."
Higher hourly rates for law clerks were awarded in Amoa-Williams and Allstate Insurance Company of Canada (FSCO A97-001864, October 24, 2001) by Arbitrator Sapin ($45 an hour) and in Clipperton and Zurich North America Canada (FSCO A97-001771, June 25, 2002) by Arbitrator Evans ($35 an hour). I am persuaded that these arbitrators had authority to make the orders they did. I am further persuaded that the services of Ms. Romanowski justify the $50 an hour claimed.
Mr. Costa, who has been working with Mr. Donnelly since 1978, is a highly experienced law clerk in the area of accident benefits. In addition to his services as a law clerk, Mr. Costa acts as an interpreter for Mr. Donnelly. The service that Mr. Costa provided as an interpreter is reasonable in the circumstances of this case, where the Applicant and his wife, who was also a witness, do not speak English. In my view, it is reasonable to have an experienced Law Clerk in the office who could deal with instant communications that have to be translated, as opposed to having an interpreter on call. In fact it strikes one that the services of Mr. Costa, both as an experienced law clerk in the area of accident benefits and as an interpreter, was not only efficient but less costly then having to hire an interpreter each time Mr. Donnelly needed to communicate with his client.
Accordingly, I find that in the circumstances of this case and for the reasons stated above, Mr. Amato is entitled to an hourly rate of $45 an hour for the services of Mr. Costa.
Regarding the hours claimed for Mr. Costa's services, I find that the detailed time dockets reflect the reasonable and necessary time that needed to be spent on this case. Mr. Amato concedes that the time spent at mediation (24.9 hours) is not to be included in this assessment. Accordingly, I find that Mr. Amato is entitled to Mr. Costa's fees in the amount of $3,915 ($45 an hour for 87 hours) plus GST.
2. Disbursements
Mr. Amato claims $20,315.03 for disbursements.
Wawanesa's Submissions
Wawanesa submits that Mr. Amato is not entitled to $59.50 the for copying of a mediation brief as it deals with the non-recoverable expenses of mediation.
Wawanesa submits that the reports of Dr. Ogilivie-Harris, Fred Winch and Afshin Khodadadi should be reduced to $1,500 each pursuant to Section 5(5) of Section F of the Code. Moreover, it submits that the $3,700 claimed for Afshin Khodadadi and $1,500 claimed for Dr. Castiglione's preparation for and attendance at the Arbitration should be reduced to $500 each for preparation time.
Accordingly, Wawanesa submits that the total amount of disbursement Mr. Amato is entitled to recover is $13,386.53.
Mr. Amato's Submissions
Mr. Amato submits that he agrees with Wawanesa's submission that the $59.50 for xeroxing is not recoverable in this assessment. He also agrees that the reports by of Dr. Ogilivie-Harris, Fred Winch and Afshin Khodadadi should be $1,500 each pursuant to the regulations on expenses.
With respect to the expert witnesses, Mr. Amato submits that the maximum recovery for preparation time is $500 each and that the maximum recovery for attendance at a hearing is $1,600.
Mr. Amato presented detailed evidence with respect to Dr. Castiglione's preparation time and attendance time at the hearing and submits that there should be no reduction to his claim of $1,500.
Mr. Amato presented similar detailed evidence with respect to Mr. Khodadadi's preparation time and attendance time at the hearing. Mr. Amato concedes that Mr. Khodadadi is entitled to $1,600 for his attendance at the hearing as an expert witness and that his preparation time should be reduced to $500 from $900 for the hearing.
In addition, Mr. Amato submits, Mr. Khodadadi should be allowed a further allowance of $200 to reflect his time and preparation for the preliminary hearing which was a separate hearing from the arbitration hearing on the substantive issues.
FINDINGS
Taking Wawanesa's submissions and Mr. Amato's concessions into consideration, I find that Mr. Amato's disbursements, as amended in this case, are reasonable. I agree with Mr. Amato's submission that in addition to preparation time, the expert witnesses are entitled to be paid for their attendance at the hearing. Accordingly, I am allowing for Dr. Castiglione $500 for preparation and $1,000 for attendance at the hearing; and for Mr. Khodadadi, $500 for preparation and $1,600 for attendance at the hearing. As well, I agree with Mr. Amato that the preliminary hearing was a separate hearing for which Mr. Khodadadi's expertise was required and I would allow the $200 claimed for his time and preparation.
Accordingly, I find that Mr. Amato is entitled to his disbursements in the amount of $16,186.53.
Expenses of the Assessment Hearing
Mr. Amato claims 9.25 hours was for his original submissions and reply submissions regarding the expense hearing. Mr. Amato claims an amount of $1,387.50 plus GST for legal fees. In addition, Mr. Amato claims $54.30 plus GST, for photocopies required in respect of the reply submissions.
Mr. Amato was largely successful in this expense hearing. The legal fees claimed by Mr. Amato are reasonable. Accordingly, I allow his claim for legal fees in the amount of $1,387.50, plus GST. I also find the amount of his claim for disbursements in the amount of $54.50 plus GST to be reasonable. Accordingly, Mr. Amato is entitled to $1,442 plus GST for his expenses in this assessment hearing.
August 17, 2006
Joyce Miller
Arbitrator
Date
Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 2006 ONFSCDRS 138
FSCO A02–000161
BETWEEN:
LUCIANO AMATO
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Wawanesa shall pay Mr. Amato his legal fees for Mr. Donnelly's services in the amount of $29,893 plus GST; the fees for Mr. Costa's services in the amount of $3,915 plus GST and $16,186.53 for disbursements.
Wawanesa shall pay Mr. Amato his Assessment Expenses in the amount of $1,442.
August 17, 2006
Joyce Miller
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 2, 1996, Ontario Regulation 403/96, as amended.
- Fourth Edition, Updated October 2003
- Chafe-Moote and Prudential of America General Insurance Co. (Canada) FSCO A99-000015 (June 15, 2000)
- (FSCO P05-00009, September 12, 2005)
- See for example, Chafe-Moote and Prudential of America General Insurance Company (Canada)
- (FSCO A99-001137, February 11, 2000)
- OIC A-007954, August 8, 1997)
- Ahmadi-Nadoushan and Allstate Insurance Company of Canada (May 14, 1996), A-008488; Lunn and State Farm Mutual Automobile Insurance Company (March 15, 1996), A-013960; Milevski and State Farm Mutual Automobile Insurance Company (February 7, 1997), A-010292.
- Lunn and State Farm Mutual Automobile Insurance Company (March 15, 1996), A-013960
- (FSCO A04-000446, June 21, 2006)