Gemene v. RBC General Insurance Company, 2007 ONFSCDRS 237

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 237

FSCO A06-000149

BETWEEN:

CRISTIAN GEMENE

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Robert Bujold

Heard: By written submissions received by July 20, 2007 and by telephone conference call on July 20, 2007.

Appearances: Christopher D. Finlay for Mr. Gemene

Aldo Picchetti for RBC General Insurance Company

The Applicant, Cristian Gemene, was injured in a motor vehicle accident on February 4, 2005. Mr. Gemene claimed and received accident benefits under the Schedule.¹ At least some of these benefits were subsequently terminated and Mr. Gemene applied for arbitration at the Financial Services Commission (the “Commission”) to have his entitlement to these benefits adjudicated.

A four-day hearing on the substantive issues was scheduled to commence on March 26, 2007. On or about March 21, 2007, the parties settled all of the issues of the arbitration. However, the parties were unable to agree upon the quantum of expenses of the arbitration that should be payable to Mr. Gemene and the parties requested an appointment before an arbitrator for an assessment of expenses pursuant to Rule 79 of the Dispute Resolution Practice Code, Fourth Edition (“Code”).

Issues:

The issue in this hearing is:

1. What is the quantum of expenses to which Mr. Gemene is entitled in respect of this arbitration proceeding?

Result:

1. Mr. Gemene is entitled to his expenses of the arbitration proceeding in the amount of $8,110.57 inclusive of G.S.T.

Background:

At a pre-hearing discussion on August 24, 2006, the following issues in dispute were identified:

1. Is Mr. Gemene entitled to receive weekly income replacement benefits from September 25, 2005 and ongoing at the rate of $276.46 per week?

2. Is Mr. Gemene entitled to receive medical benefits for occupational therapy services and assistive devices as recommended by Rehab Management and for active physiotherapy and massage recommended by Focus Rehab?

3. Is RBC liable to pay Mr. Gemene’s expenses?

4. Is Mr. Gemene liable to pay RBC’s expenses?

5. Is Mr. Gemene entitled to interest on overdue payments?

Although Mr. Gemene had returned to work on or about March 13, 2006, he continued to maintain his claim for weekly income replacement benefits (IRBs) on an ongoing basis at the pre-hearing discussion.

A written offer to settle the issues in dispute in the arbitration was served by Mr. Gemene on RBC on February 7, 2007, approximately 6 weeks before the hearing was scheduled to commence. The offer provided for payment to Mr. Gemene in the amount of $5,000.00 for IRBs, inclusive of interest, to February 4, 2007. The claim for IRBs beyond February 4, 2007 would be withdrawn, but without prejudice to Mr. Gemene being able to re-apply in the future for mediation or arbitration in respect of his entitlement to IRBs after February 4, 2007, if necessary. The offer also provided for payment of $819.57 for the outstanding account of Rehabilitation Management Inc. However, the claims for occupational therapist services and assistive devices recommended by Rehabilitation Management Inc. and for active physiotherapy and massage recommended by Focus Physiotherapy would be withdrawn. Arbitration expenses would be payable to Mr. Gemene as agreed upon or as determined by an arbitrator.

RBC did not accept the offer of February 7, 2007. However, the parties did settle all of the issues of the arbitration approximately five days before the commencement of the hearing. The settlement provided for a lump sum payment of $5,000.00. As with the offer of February 7, 2007, Mr. Gemene’s rights to mediate and arbitrate any future IRB entitlement was preserved. The ultimate settlement also provided for Mr. Gemene to receive his expenses of the arbitration, as agreed upon or assessed. The principal difference between the offer of February 7, 2007 and the ultimate settlement was that the settlement did not include any payment for the account of Rehabilitation Management Inc.

Further to the settlement, the parties were unable to reach agreement on Mr. Gemene’s expenses and requested a hearing for the assessment of expenses.

Mr. Gemene submitted a Bill of Costs (undated) for fees in the amount of $1,902.53 plus G.S.T. of $114.15 for a total of $2,016.68. RBC did not dispute the reasonableness of the number of hours or the hourly rates claimed for fees in the Bill of Costs. Nevertheless, RBC maintained that Mr. Gemene’s claim for legal fees should be reduced by 50% to reflect what it views as minor success compared to the benefits requested.

With respect to disbursements, Mr. Gemene’s Bill of Costs claimed disbursements in the amount of $16,720.24 plus G.S.T. of $997.21 for a total of $17,717.45. At the expense hearing, Mr. Gemene withdrew disbursement claims totalling $1,969.92. The parties agreed to a further $2,124.89 as having been paid or payable. The disbursements that remained in dispute at the expense hearing were as follows:

Region of Peel Fee (Police Report)

$ 45.00

Investigator’s Reports - King Reed & Associates

1,967.30

Medical Assessments and Reports - Dr. Ogilvie-Harris

3,000.00

• Dr. Ogilvie-Harris

350.00

• Dr. Pilowsky

2,200.00

• Dr. Fazl

2,000.00

Photocopies - Print Three

165.24

• Office

2,793.00

Faxes

104.89

Total Disbursements:

$12,625.43

Although it was not clear from the submissions, I am proceeding on the basis that G.S.T. of 6% or $757.53 applies to all of the disbursements remaining in dispute, bringing the total claim for disbursements, inclusive of G.S.T., to $13,382.96.

EVIDENCE AND ANALYSIS:

Section 12 of Regulation 664, R.R.O. 1990, as amended, sets out the following regarding the

awarding of expenses:

(2) 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:

1. Each party’s degree of success in the outcome of the proceeding.

2. Any written offers to settle made in accordance with subsection (3).

3. Whether novel issues are raised in the proceeding.

4. 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.

5. Whether any aspect of the proceeding was improper, vexatious or unnecessary.

6. Whether the insured person refused or failed to submit to an examination as required under section 42 of the [Schedule], made under the Act or refused or failed to provide any materials required to be provided by subsection 42(10) of that Regulation.

(3) Upon the request of the insurer or the insured person, the arbitrator shall, for the purposes of awarding expenses, take into account all written offers to settle, if any,

(a) that were made after the conclusion of mediation and before the conclusion of the arbitration; and

(b) that were made in accordance with the rules of practice and procedure applicable to the proceeding.

(4) If the arbitrator is requested to take into account a written offer under subsection (3), the arbitrator shall have regard to the terms of the offer, the timing of the offer, the response to the offer and the result of the proceeding.

The only two criteria relevant to an assessment of expenses in this matter are the first two criteria: 1. each party’s degree of success, and 2. the written offer of February 7, 2007.

Assessment of Fees:

The case law at the Commission is clear that the overriding consideration in fixing arbitration expenses is reasonableness.² It is also accepted that a line-by-line assessment of the expenses claimed is not appropriate. Rather, the arbitrator should make a global assessment of reasonable expenses.³

On its face, Mr. Gemene’s claim for fees appears reasonable. If this matter had proceeded to a four-day hearing, as scheduled, then, assuming six hours per day, this matter would have required approximately 24 hours of hearing time. Mr. Gemene’s account for fees represents less than one hour of preparation time for every hour of anticipated hearing time.

As stated, however, RBC’s issue with Mr. Gemene’s claim for fees is not with the reasonableness of the hours claimed or the hourly rates. Rather, RBC submitted that the award of fees should be reduced to take into account the first criterion – degree of success. In that regard, and notwithstanding that Mr. Gemene was able to successfully resolve the issues in the arbitration, RBC pointed out that Mr. Gemene had refused to limit his claim to IRBs to the date of his return to work (March 13, 2006). As a result, RBC’s exposure to the date of the hearing, for IRBs alone, was in excess of $21,000.00 plus interest. The $5,000.00 settlement, it is submitted, represents a minor recovery vis-a-vis the amount claimed and this should be reflected in the award for fees. RBC submitted that Mr. Gemene’s fees should be reduced from the amount claimed of $2,016.68 to $1,000.00.

I am not persuaded by RBC’s position on the issue of fees. First, while the claim for IRBs may not have been limited at the pre-hearing, I find that RBC understood that its real exposure for IRBs was limited to the period from the date of termination of his IRBs to the date of his return to work, i.e. 23 weeks at $276.46 per week or $6,427.58.⁴ Although Mr. Gemene maintained his claim for entitlement to IRBs beyond his return to work, apparently on the basis that he did not and was not able to return to his pre-accident employment as a machine operator⁵, his post-accident income nevertheless reduced any net IRB payable to $0. This was the case when Mr. Gemene returned to work and remained the case to the date of the settlement. RBC’s exposure for IRBs would have remained at $6,427.58 at the date of hearing. Though not precisely quantified, I understand that the claims for medical and rehabilitation benefits, as well as interest, would have brought RBC’s total exposure to approximately $12,000.00.

As Mr. Gemene pointed out, the Expense Regulation does not state that an applicant’s degree of success is to be considered in relation to the insurer’s “maximum exposure.” Even if it is a relevant consideration, he submitted that I should also consider the risk that he may have not succeeded at the hearing, in which case $5,000.00 may be fairly regarded as a good settlement.

Mr. Gemene also pointed out that the amount of the settlement is not the only consideration in assessing degree of success. In this case, the settlement is limited to the date of settlement and the issues in dispute. It does not include a full and final resolution of Mr. Gemene’s claims, as RBC would have preferred, nor does it even preclude Mr. Gemene from bringing a claim for IRBs in the future. Though there may be no way to precisely measure success in terms of how a settlement is structured or what rights it preserves, the point, in my view, is well made; an applicant’s “degree of success” in the context of a negotiated resolution may not be as straightforward as looking at the negotiated figure relative to the insurer’s maximum exposure. The settlement must be viewed in the context of the proceeding as a whole and with regard to both monetary and non-monetary factors.

In this case, Mr. Gemene negotiated a successful resolution to the arbitration proceeding for an amount that was not, in my view, minor relative to the Insurer’s real exposure. The settlement further preserved Mr. Gemene’s rights to claim future benefits, including IRBs, and it provided for recovery of his expenses. To the extent that the ultimate settlement may be regarded as a compromise of Mr. Gemene’s claims and therefore diminished success, it is, in my view, offset by what may also be regarded as a capitulation or compromise by RBC who, in the end, paid all but $819.57 of the prior offer made by Mr. Gemene on February 7, 2007.

As stated above, I find Mr. Gemene’s account for fees to be reasonable on its face. I am not persuaded that there is a sufficient basis, using the criterion of “degree of success”, upon which I should exercise my discretion to reduce his claim for fees.

I will also comment briefly on the offer to settle of February 7, 2007. Mr. Gemene submitted that an offer under the Code is not an offer under Rule 49 of the Rules of Civil Procedure. There is no requirement that the offer meet or exceed the final outcome in order for it to be taken into account in an award of expenses. His argument, as I understand it, is that the final resolution substantially met the terms of his offer, save and except for $819.57 which represents the outstanding account of Rehabilitation Management Inc., and should therefore be considered favourably in my assessment of expenses. Again, he also refers to the non-monetary benefits of both the offer and the final outcome.

RBC submitted that an offer should only be taken into account where a party’s result meets or exceeds the offer. Here, not only did Mr. Gemene not meet or exceed his offer but, as a negotiated settlement, he agreed to settle his claims for less than his prior offer.

I do not see anything in the Code or the Expense Regulation that would prohibit consideration of an offer that falls short of the final result. Indeed, subsection 12(4) of the Expense Regulation provides that “the arbitrator shall have regard to the terms of the offer, the timing of the offer, the response to the offer and the result of the proceeding.” The amount of the offer is obviously not the only consideration. However, what we are dealing with here is an accepted offer superseding a prior unaccepted offer. In my view, the subsequent accepted offer renders the prior offer of little or no relevance in an assessment of expenses. I find it somewhat disingenuous to knowingly enter into a settlement for an amount that is less than a prior offer and yet maintain that the prior offer supports a claim for expenses in the final result. In any event, I have already found that Mr. Gemene's expenses should not be reduced based on the first criterion, i.e. each party's degree of success in the outcome. In my view, consideration of the February 7, 2007 offer would only serve to bolster his position that his expenses should not be reduced.

In conclusion, RBC shall pay Mr. Gemene’s fees, as claimed, in the amount of $1,902.53 plus G.S.T.

Assessment of Disbursements:

Region of Peel Fee (Motor Vehicle Accident Report)

I received minimal submissions on this item. The charge appears to be for a motor vehicle accident report dated February 4, 2005 obtained from the Region of Peel. I received no explanation as to why this report would be relevant to the arbitration. There were no submissions that the circumstances of the accident were disputed or otherwise relevant to an issue in dispute. I therefore decline to award this expense item.

King Reed & Associates Inc. Reports of August 9, 2005 and September 14, 2005

The investigation firm of King Reed & Associates Inc. (King Reed) was retained by the Applicant in or about July 2005.⁶ King Reed was requested to interview Mr. Gemene’s supervisor to ascertain details of his job duties and whether he was considered a good employee. King Reed was also asked to investigate details of any wage increase, strikes or layoffs that would have affected Mr. Gemene since the date of loss. Videotape of someone performing the same job as Mr. Gemene was also requested.

King Reed was also provided with a list of three individuals – a cousin, an uncle and a friend – who were to be interviewed with respect to Mr. Gemene’s pre-accident activity level, his work history, his career aspirations and any recreational activities he may have been involved in pre-accident, as well as any changes they observed in Mr. Gemene subsequent to the accident. Finally, King Reed was asked to obtain their knowledge of Mr. Gemene’s pre-accident health and the extent to which he was disabled or limited pre-accident and post-accident.

King Reed issued two reports dated August 9, 2005 and September 14, 2005. The cost of these reports submitted by Mr. Gemene for recovery is $1,967.30. Mr. Gemene maintains that the expense incurred for the investigations and reports by King Reed were reasonable in the context of the arbitration proceeding. I disagree.

Mr. Gemene maintained that there was some speculation that his pre-accident medical history, which included prior back surgery in Romania, was in issue and, as a result, his pre-accident level of functioning was very important. RBC acknowledged that there was an initial issue of whether his impairments were due to pre-existing conditions. However, the initial insurer’s examination by Dr. Sekyi-Otu, orthopaedic surgeon, in March 2005 did conclude that Mr. Gemene was disabled from his pre-accident employment as a result of the accident, notwithstanding the pre-accident condition. Further, the addendum to Dr. Sekyi-Otu’s subsequent report dated August 23, 2005 (which RBC relied upon to subsequently issue a Notice of Stoppage dated September 7, 2005) opined that Mr. Gemene was able to return to his pre‑accident employment. The denial was not based on causation.

I also note that King Reed was retained not only prior to the commencement of the arbitration proceeding, but prior to the termination of IRBs. Indeed, King Reed was retained before Dr. Sekyi-Otu even conducted his August re-assessment that led to the stoppage. In my view, Mr. Gemene has failed to establish that there was a reasonable connection between the King Reed retainer and the issues in dispute in this arbitration. There does not appear to have been an issue regarding the tasks of Mr. Gemene’s pre-accident employment or whether he had been able to perform them pre-accident. In my view, most of the inquiries made by King Reed related to matters that are of greater, if not exclusive, relevance to tort issues such as, for example, the impact of the accident on Mr. Gemene’s enjoyment of life and his future earning potential.

Mr. Gemene suggested that the Commission should be loathe to tell applicants how to prepare their cases or discourage early investigation and preparation of the file. Mr. Gemene submitted that, while retaining an investigator at an early stage in the process may be unusual, it was not unreasonable, and it provided his counsel with valuable information from lay witnesses whose evidence is frequently found helpful at arbitration. While I do not purport to tell the Applicant how to prepare his case, I must still consider any disbursement claimed in terms of its reasonableness vis-a-vis the arbitration and the issues in dispute. Given the nature and timing of the investigations conducted by King Reed, I am unable to conclude that this disbursement had more than a tangential benefit to the arbitration proceeding and I decline to award Mr. Gemene his expenses for this item.

Medical Assessments and Reports

Dr. Ogilvie-Harris’ reports of January 12, 2007 and February 13, 2007

Mr. Gemene claimed accounts from Dr. Ogilvie-Harris in the amounts of $3,000.00 for his report of January 12, 2007 and $350.00 for his report of February 13, 2007.

RBC submitted that the timing of Dr. Ogilvie-Harris’ reports, coming approximately ten and eleven months respectively after Mr. Gemene’s return to work on March 13, 2006, meant they had little value to his IRB claim, since his post-accident income as a superintendent effectively wiped out any entitlement. I am unable to agree with RBC on this point. There remained a live issue of whether Mr. Gemene was substantially unable to work at his pre-accident employment for the period from September 26, 2005 and ongoing. Although Mr. Gemene had returned to work on March 13, 2006, he did not return to his pre-accident employment. Further, and notwithstanding that his post-accident income from March 2006 onward may have cancelled out any amount otherwise payable, there was still the matter of Mr. Gemene’s entitlement from September 26, 2005 to March 13, 2006. I agree that the lateness of Dr. Ogilvie-Harris’ reports may have impacted the weight they would have received at the hearing, but I also agree with Mr. Gemene that without Dr. Ogilvie-Harris’ reports, his chances of succeeding at arbitration would have been materially diminished. Dr. Ogilvie-Harris specifically addressed the “substantial inability” test and challenged the conclusions of Dr. Sekyi-Otu. Further, without the reports, Mr. Gemene may not have been able to negotiate the settlement that concluded the matter short of a hearing.

RBC also submitted that the reports of Dr. Ogilvie-Harris have a strong tort component and were not prepared primarily for the arbitration. On this point, I agree that Dr. Ogilvie-Harris’ report of January 12, 2007 does have a tort component.

As I review the January 12, 2007 report, it appears that it would be of substantially equal benefit to both the arbitration and tort proceedings. The January 12, 2007 report does provide the opinion that Mr. Gemene is substantially unable to perform the essential tasks of his pre-accident employment as a machine operator, but it also opines that he is limited in his ability to carry out heavier domestic tasks. Housekeeping and home maintenance benefits was not an issue in the arbitration. Further, and more importantly, the report specifically addresses the tort threshold, including the impact of the accident on Mr. Gemene’s social and recreational activities and his ability to find suitable employment in the future. Having regard to the report as a whole, I find that the report was secured for both accident benefit and tort purposes and, as a result, this expense, as a recoverable disbursement in the arbitration proceeding, should be reduced by 50%. RBC shall therefore pay $1,500.00 plus G.S.T. for Dr. Ogilvie-Harris’ report of January 12, 2007. I note that $1,500.00 is the maximum that Mr. Gemene would have been able to recover for this report under the Expense Regulation in any event.

The February 13, 2007 report specifically and exclusively addresses the treatment suggested by Rehabilitation Management Inc. and Focus Physiotherapy, which were issues in the arbitration. However, I note that the February 13, 2007 report is essentially one short paragraph. I am not persuaded that the report would have provided more than modest assistance in the arbitration of the treatment issues. I therefore find the charge of $350.00 to be excessive relative to its value and should be reduced. RBC shall pay $200.00 plus G.S.T. for Dr. Ogilvie-Harris’ report of February 13, 2007.

Dr. Pilowsky’s reports of February 8, 2007 and February 13, 2007

Mr. Gemene also claimed $2,200.00 for Dr. Pilowsky’s report of February 8, 2007 and his addendum report of February 13, 2007. Dr. Pilowsky is a psychologist who conducted a psychological evaluation of Mr. Gemene on January 18, 2007.

As with Dr. Ogilvie-Harris’ reports, RBC argued that the timing of Dr. Pilowsky’s reports rendered them of little or no value to the arbitration. The lateness of the reports may be even more problematic than Dr. Ogilvie Harris’ reports but, again, it was not, in my view, unreasonable that Mr. Gemene would obtain a report from Dr. Pilowsky to respond to the psychological component of Dr. Lawson’s neuropsychological assessment before proceeding to a hearing. Again, I also expect that Dr. Pilowsky’s reports served to facilitate the negotiated resolution that was eventually reached.

RBC also argued that Dr. Pilowsky’s reports were more properly associated with Mr. Gemene’s tort claim rather than issues in the arbitration. In that regard, I note that significant portions of Dr. Pilowsky’s report deal with Mr. Gemene’s inability to do housekeeping, as well as the impact of the accident on his participation in social and recreational activities. It also deals with the impact of the accident on his marital relationship and how his wife was affected by the accident. It also references a lost job prospect. Further, it is not until the addendum report of February 13, 2007 that Dr. Pilowsky provides a clear opinion that Mr. Gemene’s psychological limitations prevented him from returning to his pre-accident employment. Although the reports were, in my view, partially relevant and likely to be somewhat helpful at arbitration, I find it appropriate to limit recovery for Dr. Pilowsky’s report to 50% of his total invoice. RBC shall therefore pay $1,100.00 plus G.S.T. for Dr. Pilowsky’s reports of February 8, 2007 and February 13, 2007.

Dr. Fazl’s reports of January 22, 2007 and February 23, 2007

Mr. Gemene claimed $2,000.00 for the report and addendum note of Dr. Fazl dated January 22, 2007 and February 23, 2007 respectively. Dr. Fazl is a neurosurgeon at Sunnybrook Health Sciences Centre who examined Mr. Gemene on January 22, 2007.

As with both Dr. Ogilvie-Harris’ reports and Dr. Pilowsky’s reports, and for the reasons already stated, I am not convinced that the lateness of Dr. Fazl’s reports render them an unreasonable or unnecessary arbitration expense. Again, the lateness of the reports may have affected the weight accorded to them but, in my view, and without knowing exactly what impact the reports would have had on the hearing arbitrator’s assessment of the evidence, proceeding to the arbitration hearing without the reports may have been imprudent.

I am also not persuaded that the expense claimed for Dr. Fazl’s reports should be reduced on the basis that the reports are more closely related to Mr. Gemene’s tort action. Although there may be some benefit to the tort action, Dr. Fazl does not specifically address tort issues, unlike the reports of Dr. Ogilive-Harris and Dr. Pilowsky. His report of January 22, 2007 is notably more medical than legal. The addendum note of February 23, 2007 specifically and exclusively addresses whether Mr. Gemene would be able to return to his pre-accident employment. Taken together, I find that Dr. Fazl’s reports are directly relevant to the issues in dispute in the arbitration and would likely have assisted the arbitrator at the hearing. Dr. Fazl’s invoice, however, exceeds the maximum recoverable for an expert report as set out in the Expense Regulation. The expense is therefore reduced to the maximum of $1,500.00. RBC shall pay $1,500.00 plus G.S.T. for the cost of Dr. Fazl’s reports dated January 22, 2007 and February 23, 2007.

Photocopies

Print Three Photocopies

Mr. Gemene claimed photocopy expenses in the amount of $165.24 for an invoice for photocopies from Print Three. I did not receive sufficient particulars of this expense to be able to relate the charge to the arbitration proceeding or assess its reasonableness. The claim for this expense item is denied.

Office Photocopies

Mr. Gemene has the burden to establish that his expenses were incurred for the arbitration proceeding. He must also establish that his expenses were reasonable.

Here, Mr. Gemene claimed photocopy expenses related to copies made at his counsel’s office. The total amount claimed exclusive of G.S.T. for office photocopies is $2,793.00. It was agreed that, at 25 cents per copy, this would amount to 11,172 copies. On its face, Mr. Gemene’s claim for office photocopies appears excessive given number and value of the issues in dispute.

Mr. Gemene submitted that much of the photocopy expenses related to making copies of his file (or a substantial portion of the file) for the medical assessors who examined him, as well as making briefs for the hearing that was less than a week away when the matter settled.

I accept that Mr. Gemene likely incurred significant photocopy expenses in connection with the arbitration. However, I do not find that Mr. Gemene has established that the full account submitted is attributable to the arbitration proceeding.

First, I did not hear whether or how office expenses related to the arbitration proceeding and the tort action were delineated. I heard submissions from Mr. Gemene’s counsel that his office uses a computerized system to track photocopies. From this, I understand that Mr. Gemene’s file number is entered into the photocopier (or some device that is connected to the photocopier) and the number of copies made against that file number is automatically recorded against his account. However, I did not hear any submissions that separate file numbers were maintained for the tort and accident benefit matters.

As noted above, several disbursements totalling $1,969.92 were withdrawn from Mr. Gemene’s Bill of Costs at the outset of the hearing. Most of the withdrawn items related to invoices from ‘Legal Link’ for charges that were clearly related to Mr. Gemene’s tort action, such as service of a Statement of Claim. The fact that these charges were contained in the Bill of Costs for the arbitration expense hearing raises serious concerns, in my view, as to the adequacy of efforts, if any, to distinguish arbitration from tort expenses.

Further, I have already found that at least two medical assessors examined Mr. Gemene for both accident benefit and tort purposes. This, in my view, would further warrant a reduction in the award for office photocopies as an expense of the arbitration.

In conclusion, I find that the total amount claimed for office photocopies ($2,793.00 or 11,172 copies) is unreasonable given the number and value of the issues in dispute. Further, I find that Mr. Gemene has failed to establish that adequate steps were taken to distinguish accident benefit from tort expenses. For both theses reasons, I find it appropriate to reduce Mr. Gemene’s claim for office photocopies by 50%. RBC shall therefore pay $1,396.50 plus G.S.T. on account of Mr. Gemene’s office photocopies.

Faxes

Mr. Gemene submitted a claim for fax expenses in the amount of $104.89. Mr. Gemene’s counsel submitted that fax expenses were also tracked by computer in a manner similar to office photocopies. For the reasons already stated in connection with office photocopies, I find that Mr. Gemene’s fax expenses should also be reduced by 50%. RBC shall pay $52.45 plus G.S.T. on account of Mr. Gemene’s fax expenses.

Conclusion:

In summary, Mr. Gemene is entitled to his expenses of the arbitration proceeding as follows:

Fees

$1,902.53

G.S.T. on Fees

114.15

Disbursements

Region of Peel Fee (Police Report)

0

Investigator’s Reports - King Reed & Associates

0

Medical Assessments and Reports - Dr. Ogilvie-Harris

$1,500.00

• Dr. Ogilvie-Harris

200.00

• Dr. Pilowsky

1,100.00

• Dr. Fazl

1,500.00

Photocopies - Print Three

0

• Office

1,396.50

Faxes

52.45

Total Disbursements

$5,748.95

G.S.T. on Disbursements

344.94

Total Fees, Disbursements and G.S.T.

$8,110.57

November 30, 2007

Robert Bujold

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 237

FSCO A06-000149

BETWEEN:

CRISTIAN GEMENE

Applicant

and

RBC GENERAL 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:

1. RBC shall pay to Mr. Gemene his expenses of the arbitration proceeding in the amount of $8,110.57 inclusive of G.S.T.

November 30, 2007

Robert Bujold

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2see, for example, Henri and Allstate Insurance Company of Canada (OIC A-007954, August 8, 1997),
3. 3see, for example, Lunn and State Farm Mutual Automobile Insurance Company (OIC A‑013960, March 15, 1996),
4. 4see RBC’s written submissions, para. 5
5. 5Mr. Gemene secured work as a building superintendent through friends in the community. It was his position that the superintendent job was less physically demanding than his pre-accident employment as a machine operator and that he was “cut a lot of breaks.”
6. 6Applicant’s Brief, tab 2