Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2007 ONFSCDRS 57

FSCO A06–001533

BETWEEN:

JANAHIDEVY ANANTHAMOORTHY

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before:

Richard Feldman

Heard:

By written submissions received by February 28, 2007 and by telephone conference call on March 2, 2007.

Appearances:

David S. Wilson for Mrs. Ananthamoorthy

Pamela A. Brownlee for TD Home and Auto Insurance Company

Issues:

The Applicant, Janahidevy Ananthamoorthy, was injured in a motor vehicle accident on September 28, 2005. She applied for and received statutory accident benefits from TD Home and Auto Insurance Company ("TD"), payable under the Schedule.¹ TD terminated weekly income replacement benefits on April 6, 2006, terminated housekeeping and home maintenance benefits on April 6, 2006 and terminated attendant care benefits on September 7, 2006. The parties were unable to resolve their disputes through mediation and Mrs. Ananthamoorthy applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.²

Pending the arbitration hearing (which is scheduled to commence on July 9, 2007), the Applicant brought a motion for interim benefits pursuant to subsection 279(4.1) of the Insurance Act. The motion was heard by me on December 8, 2006. It took a full day. My written decision denying the Applicant's motion was issued on January 17, 2007. TD is now seeking an order for its expenses of that motion. The parties were permitted an opportunity to file written submissions with respect to this issue and to make oral arguments during an electronic hearing (via teleconference) conducted on March 2, 2007.

The issue in this further hearing is:

1. Is TD entitled to its expenses incurred in respect of the Applicant's motion for interim benefits and, if so, in what amount?

Result:

1. TD is entitled to its expenses incurred in respect of the Applicant's motion for interim benefits in the amount of $2,449.68, payable by the Applicant in any event of the cause.

ANALYSIS:

Subsection 282(11) of the Insurance Act states:

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.

Subsection 282(11.1) of the Insurance Act provides that:

The arbitrator may at any time during an arbitration proceeding make an interim award of expenses, subject to such terms and conditions as may be established by the arbitrator.

The criteria for determining entitlement to expenses are set out in the Expense Regulation.³Counsel for both parties agree that, of the five criteria listed in the Expense Regulation, the only one relevant in this case is the degree of success of each of the parties in the outcome of the proceeding. The parties agree that TD was completely successful on the motion.

On behalf of the Applicant, Mr. Wilson suggested that it might be more appropriate to leave the issue of the expenses of the motion to be decided along with the expenses of the rest of the proceeding. Alternatively, he suggested that enforcement of any interim expense order be delayed until the conclusion of the proceeding as a whole, as the Applicant is not currently in a position to pay any expenses and, if she is generally successful on her application, any costs awarded by me to TD could be set off against any expenses that may be awarded to Mrs. Ananthamoorthy on the hearing of the merits of her application.

On behalf of TD, Ms. Brownlee argued that I was in the best position to assess the expenses related to the motion for interim benefits and requested that I make an interim order for expenses in favour of TD on the basis that it had been completely successful on the motion. Ms. Brownlee submitted that this was particularly appropriate in this case, where the motion was denied primarily because the Applicant failed to make full and fair disclosure of her financial circumstances or to otherwise demonstrate any real urgent need for interim benefits.

I am satisfied that, in these circumstances, TD is entitled to its expenses related to the Applicant's motion for interim benefits. The question then becomes, what is the appropriate amount of expenses to award to TD. The motion itself took about 8 hours to hear. In total, Ms. Brownlee docketed almost 24 hours related to the motion and had a junior associate spend approximately another 10 hours on the file (a total of about 34 hours). Mr. Wilson indicated that he spent approximately 19 hours preparing for and attending on the motion. In all of the circumstances, I find that a reasonable amount of time to have spent on this motion would be 24 hours (which represents a ratio of about 2 hours of preparation time for every one hour of time actually spent at the hearing). The time dockets reveal that approximately 70% of the total time spent on the motion can be attributed to Ms. Brownlee and approximately 30% can be attributed to her associate, Elizabeth Wilson. I shall therefore allocate 17 hours to Ms. Brownlee (approximately 70% of 24 hours) and 7 hours to Ms. Wilson (approximately 30% of 24 hours). At the appropriate legal aid rates, counsel fees can therefore be calculated as follows:

Pamela A. Brownlee (17 hrs. @ $92.34/hr.)

$1,569.78

Elizabeth Wilson (7 hours @ $73.87/hr.)

$ 517.09

SUBTOTAL

$2,086.87

G.S.T.:

$ 125.21

TOTAL FEES + G.S.T.

$2,212.08

TD also claims about $500 in disbursements, which includes $237.00 plus G.S.T. for the charges of a court reporter retained by TD. Mr. Wilson argued that this latter expense is not a recoverable disbursement. The vast majority of cases on this point seem to support his position.⁴

I am, therefore, not allowing that particular disbursement at this time. If, however, the transcript of the cross-examination of the Applicant at the motion before me becomes an important piece of evidence at the hearing of the merits of this application, I shall leave it open to TD to renew its request for its expenses related to the services of Professional Court Reporters Inc. with respect to the hearing that was held on December 8, 2006.

With respect to courier charges, Ms. Brownlee advised me that TD is now seeking $24.09 plus G.S.T., not $60.95 plus G.S.T. as originally shown on her Bill of Costs.

The disbursements that I have allowed are as follows:

Photocopying charges

$200.06

Courier Charges

$ 24.09

G.S.T.

$ 13.45

TOTAL DISBURSEMENTS + G.S.T.

$237.60

CONCLUSION:

The expenses (i.e., total fees and disbursements, including G.S.T.) to which TD is entitled on this motion total $2,449.68. This amount is payable by the Applicant to TD in any event of the cause. Nevertheless, I find it to be reasonable to include as a term of my order that enforcement of the order be delayed until the determination of Mrs. Ananthamoorthy's application.

March 21, 2007

Richard Feldman

Arbitrator

Date

Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2007 ONFSCDRS 57

FSCO A06–001533

BETWEEN:

JANAHIDEVY ANANTHAMOORTHY

Applicant

and

TD HOME AND AUTO 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. Mrs. Ananthamoorthy shall pay $2,449.68 to TD for its expenses related to her motion for interim benefits. This amount is payable in any event of the cause. TD shall not seek to enforce this order until the determination of Mrs. Ananthamoorthy's application.

March 21, 2007

Richard Feldman

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2R.S.O. 1990, c. I.8, as amended.
3. 3Section 12 of O. Reg. 664, R.R.O. 1990, as amended to O. Reg. 275/03, which can be found in Section F of the Commission's Dispute Resolution Practice Code.
4. 4See Singh and Wawanesa Mutual Insurance Company (FSCO A02-001401, May 18, 2004), Cook and Pilot Insurance Company (FSCO A03-001085, March 17, 2006), Burke and Allstate Insurance Company of Canada (FSCO A01-000969, August 7, 2003), D.F. and Wawanesa Mutual Insurance Company (FSCO A05-000779, December 22, 2006) and Hughes and Allstate Insurance Company of Canada (FSCO A99-000961, April 2, 2002).