Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 2007 ONFSCDRS 33
FSCO A06–000741
BETWEEN:
NADEJDA ALMALIAH
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Jeffrey Rogers
Heard:
February 9, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Ms. Almaliah did not attend
Ms. Joan Takahashi, solicitor for Dominion of Canada General Insurance Company
Issues:
The Applicant, Nadejda Almaliah, claimed that she was injured in a motor vehicle accident on August 11, 2003. She applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.1 Dominion disputes her entitlement to the benefits claimed. The parties were unable to resolve their dispute through mediation, and Ms. Almaliah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:
Is Ms. Almaliah entitled to the benefits she claimed in this arbitration?
Is either party liable to pay the other's expenses in respect of the arbitration, under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Result:
The application for arbitration is dismissed.
Ms. Almaliah shall pay Dominion's expenses in the amount of $1,842.11.
ANALYSIS:
This application was filed by solicitors, on Ms. Almaliah's behalf. On September 21, 2006, the date for which the pre-hearing was scheduled, they sought an order removing them from the record. As noted in my decision of October 18, 2006, Ms. Almaliah's solicitors had lost contact with her, before they filed the application. Dominion opposed the motion for removal and sought an order requiring the solicitors to pay its expenses. I granted the motion and denied the claim for expenses against the solicitors. The pre-hearing was then reconvened on December 8, 2006. Ms. Almaliah did not attend the pre-hearing or communicate with the Commission. She did not attend the hearing.
I am satisfied that Ms. Almaliah was given notice of the hearing, both by Dominion and the Commission at her last known address contained in the records of the Dispute Resolution Group, as required by Rule 5.7 of the Dispute Resolution Practice Code.
No evidence having been tendered to support the application, the application is dismissed.
EXPENSES:
Dominion sought its expenses of the arbitration in the amount of $6,036.15 for legal fees and $81.54 for disbursements. I find that, based on its success, Dominion is entitled to its expenses of the arbitration, but not of its unsuccessful opposition to the removal of Ms. Almaliah's solicitor's from the record. Had Dominion not opposed the motion, the pre-hearing would have proceeded on September 21, 2006. I am therefore not prepared to allow the total of 38.8 hours for counsel and 1.2 hours for a law clerk, that Dominion has claimed. I find that a total of 18 hours for counsel plus 1.2 hours for a law clerk, is reasonable in the circumstances.
Rule 78.1 of the Dispute Resolution Practice Code fixes the maximum amount that may be awarded to an insured person or an insured for legal fees. The amount is calculated using the hourly rates established under the Legal Aid Services Act, 1998 for professional services in the Ontario Superior Court of Justice, plus any applicable experience allowance. Rule 78.1 also confers jurisdiction on an arbitrator to award a higher amount to an insured person, up to a maximum of $150 per hour.
Dominion claimed its legal fees at the rate of $150 an hour for lead counsel, submitting that an arbitrator has inherent jurisdiction to make an award at that rate, in favour of an insurer. Dominion did not refer to any authority for this jurisdiction, and I have found none. I find that an award in favour of an insurer is limited to the Legal Aid rate. The applicable rate for lead counsel is $92.34 and for junior counsel $73.87.
I have allowed fees and disbursements as follows:
Lead Counsel
$92.34hr.
15.6hrs.
$1,440.50
Junior Counsel
$73.87hr.
2.4hrs.
$177.29
Law Clerk
$23hr.
1.2hrs.
$27.60
GST on fees
$115.18
Disbursements
$81.54
Total
$1,842.11
February 27, 2007
Jeffrey Rogers
Arbitrator
Date
Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 2007 ONFSCDRS 33
FSCO A06–000741
BETWEEN:
NADEJDA ALMALIAH
Applicant
and
DOMINION OF CANADA 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:
The application for arbitration is dismissed.
Ms. Almaliah shall pay Dominion's expenses in the amount of $1,842.11.
February 27, 2007
Jeffrey Rogers
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.