Financial Services Commission of Ontario / Commission des services financiers de l’Ontario
Neutral Citation: 2008 ONFSCDRS 110
Appeal: P06-00022
OFFICE OF THE DIRECTOR OF ARBITRATIONS
CERTAS DIRECT INSURANCE COMPANY Appellant
and
AMMA KWATEMAA Respondent
BEFORE: David Evans
REPRESENTATIVES: Ryan M. Naimark for Certas Direct Insurance Company Carmine Tiano for Ms. Kwatemaa
HEARING DATE: July 4, 2008
APPEAL EXPENSES ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Certas Direct Insurance Company shall pay Ms. Kwatemaa her appeal expenses in the amount of $5,000.
July 8, 2008
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
In my decision of February 28, 2008, I dismissed the appeal by Certas of Arbitrator Murray’s decision of June 2, 2006. The parties disagreed about appeal expenses and requested a telephone conference to resolve the dispute.
II. AMOUNT OF THE ORDER
Certas concedes that Ms. Kwatemaa is entitled to her expenses in relation to the appeal but disputes the amount being claimed.
Ms. Kwatemaa claims legal fees of $5,235.00 based on $150 per hour for 34.9 hours of work by her counsel, Mr. Tiano. She also claims about $250 in disbursements for photocopies and facsimiles.
Certas disputes the claimed hourly rate. While legal fees are based on the Legal Aid hourly rates, Rule 78.1 of the Dispute Resolution Practice Code allows an arbitrator to award up to $150 per hour for services rendered by an insured’s counsel where he or she is satisfied it is justified. Certas relies on my decision in Schihl and Canada Life, (FSCO A97–000566, July 16, 2000), in which I, as arbitrator, awarded $110 per hour on the basis that although the insured’s counsel was experienced, he did not have to deal with multiple, complex issues.
However, with respect to appeal expenses, I prefer the approach set out by Director’s Delegate Makepeace in the appeal expenses order Farmer’s Mutual Insurance Company and Crossey, (FSCO P05–00028, September 19, 2007), because it is more recent and, I believe, reflects the trend in assessing counsel fees at the Commission. She awarded the insured’s counsel legal fees at $150 per hour.
I note that Mr. Tiano was called to the Bar in 1994 and has worked extensively in the area of statutory accident benefits. Although the issue at the hearing can be stated simply – whether Ms. Kwatemaa was in an accident – Certas’s counsel raised many issues on appeal in over 40 pages of submissions. Mr. Tiano had to respond to those points, which also required him to review the transcript of the hearing. I find that in these circumstances, considering Mr. Tiano’s experience and the relative complexity of the matter as advanced by Certas, Ms. Kwatemaa is entitled to $150 per hour for Mr. Tiano’s services.
Certas disputes the total numbers of hours claimed. It does not dispute Mr. Tiano’s eight hours docketed for preparing the response and submissions or the five hours docketed for the appeal hearing itself. It submits that there should be a one to one ratio between hearing time and preparation time, so it submits an additional five hours of preparation time would bring the total to eighteen hours.
However, as reiterated in Crossey, “[A] line-by-line expenses assessment is not appropriate, but rather a reasonable estimate of expenses incurred.” I also do not think a strict reliance on ratios is apt in appeals, since appeals hearings are short but may require lengthy preparation. In addition, as in Crossey, Certas’s reliance on the arbitration transcript in support of what was essentially a fact-based appeal forced Ms. Kwatemaa to answer to detailed evidentiary submissions in response to the appeal. However, the evidence in this case was not nearly as extensive as that in Crossey, where the delegate allowed fifty hours for a total of $7,500. In these circumstances, allowing about thirty hours for preparation and attendance at the hearing, I assess a global figure, including the disbursements, legal fees and GST, of $5,000.
July 8, 2008
David Evans Director’s Delegate
Date