D.F. v. Wawanesa Mutual Insurance Company, 2008 ONFSCDRS 138

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 138

FSCO A05-000779

BETWEEN:

D.F.

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Fred Sampliner

Heard: Written submissions received from Wawanesa July 9, 2008 and July 28, 2008

Appearances: D.F. represented herself

Ian D. Kirby for Wawanesa Mutual Insurance Company

Issues:

The Applicant’s accident benefits claims under the Schedule¹, which arise from an October 13, 2002 motor vehicle accident, have been dismissed in my June 20, 2008 decision. I reserved on the issue of the parties’ expenses.

The issue in this further hearing is:

Is either party entitled to their expenses of this arbitration hearing, and what is the amount?

Result:

Wawanesa is entitled to $9,457.84 for its expenses of the arbitration hearing.

EVIDENCE AND ANALYSIS:

D.F. submits that the arbitration hearing was not completed on November 23, 2007, and therefore I have no authority to decide the parties’ expenses. On that day, she objected to my conclusion of the hearing, and has filed her appeal of my June 20, 2008 decision on the merits of her claims.

D.F. has not substantively responded to my request for the parties’ submissions on expenses. I reject D.F.’s submission that expenses cannot be determined at this point because the final decision on her claims was rendered on June 20, 2008, and subsection 282(11) of the Insurance Act provides authority for arbitrators to make expense awards.

In the June 20, 2008 decision, I found that D.F. was entirely unsuccessful, raised no novel issues and unnecessarily prolonged the proceedings, criteria I am obliged to consider for expense decisions under Rule 75 of the Dispute Resolution Practice Code. Based on the criteria, I find that Wawanesa is entitled to its expenses of the arbitration pursuant to the authority of subsection 282(11) of the Insurance Act.

I have reviewed and accept Wawanesa’s time docket from its lawyer and law clerk. The lawyer’s 90.6 hours at the $92.34 an hour rate and the law clerk’s time of 4.6 hours at $23.00 per hour are reasonable and both use the appropriate legal aid rate under the Expense Regulation. I find that Wawanesa is entitled to $8,471.80 for legal fees plus $423.59 GST.

With one exception, Wawanesa’s disbursements are reasonable and comply with the Expense Regulation. The $1,938 court reporter fee does not fall within the specific items in the Expense Regulation, and I am of the view that a court reporter’s attendance is not a reasonably necessary out-of-pocket expense to fairly conduct this hearing under subsection 4(4) of the Expense Regulation.² I find that Wawanesa is entitled to a total of $559.10 plus $3.35 GST for disbursements.

August 15, 2008

Fred Sampliner

Arbitrator

Date