Neutral Citation: 2006 ONFSCDRS 20

FSCO A02-000182

BETWEEN:

DAVID ZLOCHEVSKY

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ASSESSMENT OF EXPENSES

Before: Joyce Miller

Heard: By telephone conference call on November 10, 2005.

Appearances:

No one appeared for Mr. Zlochevsky

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The issue in this hearing is:

What is the amount of expense that Mr. Zlochevsky is required to pay Allstate Insurance Company of Canada ("Allstate")?

Result:

Mr. Zlochevsky is required to pay Allstate the amount of $7,005.56 for its legal fees and disbursements, including GST.

BACKGROUND:

The Applicant, David Zlochevsky, was injured in a motor vehicle accident on June 15, 2001. An arbitration hearing was held on November 12 and 13, 2002 to deal with outstanding issues between Mr. Zlochevsky and Allstate. In a decision dated December 6, 2002, I dismissed Mr. Zlochevsky's claim for statutory accident benefits under the Schedule¹ and awarded Allstate its reasonable arbitration expenses.

On December 16, 2002, Allstate provided Mr. Zlochevsky with an itemized Bill of Costs for its arbitration expenses. They were not paid. Accordingly by letter dated June 2, 2005, Allstate requested an assessment of its expenses, with a copy to Mr. Zlochevsky's counsel, Mr. Zwiebel, and an attached Bill of Costs.

A Notice of Assessment of Expenses was sent by FSCO on September 6, 2005 to both Mr. Zlochevsky and his counsel, Mr. Zwiebel, that written submissions regarding Allstate's Bill of Costs were required by September 30, 2005 and a reply from Allstate by October 7, 2005.

On October 3, 2005, Mr. Zwieble advised FSCO that he no longer represented Mr. Zlochevsky.

On November 10, 2005, at a Motion hearing before me, Mr. Zwieble was permitted to withdraw as Mr. Zlochevsky's counsel, without terms.²

At the conclusion of the Motion hearing, counsel for Allstate asked me to deal with the outstanding Assessment of Expenses hearing on the basis that Mr. Zlochevsky had ample notice of the Assessment and has chosen not to reply.

After reviewing the file, I found that the file showed that Mr. Zlochevsky had been provided with written notice of the Assessment of Expenses hearing. This Notice states:

If you or your representative do not participate, the Arbitrator may proceed with the assessment without your participation and you will not be entitled to any further notice in the proceeding.

There was no indication in the file that this Notice was returned to FSCO. As well, there was no indication in the file that Mr. Zlochevsky had, as required by the Rules in the Dispute Resolution Practice Code, provided FSCO with a change of address. Accordingly, I found that Mr. Zlochevsky had proper notice of Allstate's request for an assessment of its costs and I proceeded to dispose of the assessment request in Mr. Zlochevsky's absence.

Assessment of Bill of Costs

In its Bill of Costs, Allstate claims legal fees at the Legal Aid rate, based on counsel's experience, in the amount of $4,685.04 plus GST of $327.95 for a total of $5,012.99 and disbursements inclusive of GST in the amount of $1,992.57.

I have reviewed the breakdown of the Bill of Costs and I find the number of hours, the rate, and the disbursements claimed, to be reasonable in relation to the length of time and complexity of the arbitration hearing.

Accordingly, I find that Mr. Zlochevsky shall pay Allstate its expenses for its legal fees and disbursements, including GST, in the amount of $7,005.56.

February 1, 2006

Joyce Miller

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario