Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 38

FSCO A06-002094

BETWEEN:

BAVANI THEVARANJAN

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

*Minor error on pages 2, 3 and Order corrected on March 18, 2008 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Fred Sampliner

Heard: Oral submissions received on December 7, 2007.

Appearances: David S. Wilson for Ms. Thevaranjan Michael Chadwick for Personal Insurance Company of Canada

Issues:

The Applicant, Bavani Thevaranjan, was injured in a motor vehicle accident on April 22, 2004. In a decision dated June 26, 2007, I granted her ongoing claim for income replacement benefits under the Schedule¹ and also her claim for her expenses of this arbitration proceeding.

The sole remaining issue is:

What are the expenses Ms. Thevaranjan is entitled to receive for this arbitration proceeding?

Result:

Ms. Thevaranjan is entitled to $11,514.50 for her expenses of this arbitration.

EVIDENCE AND ANALYSIS:

Personal’s main objection is with Ms. Thevaranjan’s claim that her lawyer should be paid for 47 hours work on this arbitration. The Company argues that fourteen hours is sufficient to cover her lawyer’s time in preparation for and attendance at the single day entailed for hearing the case. The differential between the parties’ positions on legal fees equates to $7,050 versus $2,100, using the agreed upon $150 per hour rate.

The central item Personal criticizes is Ms. Thevaranjan’s lawyer bulk billing 23.6 hours for dealing with 118 pieces of correspondence. He does not identify the document or itemize individual dates and times for each. Ms. Thevaranjan contends that setting out this kind of detail is too cumbersome for his office, and that this type of bulk billing for correspondence was previously approved by another FSCO arbitrator.

Although bulk billing for services is an acceptable practice under the Solicitors Act, I am not persuaded that her lawyer prepared and reviewed each of the 118 pieces of correspondence. Absent supporting evidence from him or his staff working alongside him, I am prepared to allow half, 11.8 hours for the bulk billing of correspondence.

On the other side of the coin, Personal’s position does not provide Ms. Thevaranjan reimbursement for legal services prior to the hearing stage; only preparation before and attendance at the hearing. FSCO precedent clearly establishes that she is entitled to reasonable legal fees from the time her lawyer prepared her Application for Arbitration until the hearing stage.

I find that the itemized 10.4 hours of time for her lawyer’s preparation of the Application until preparation for the arbitration hearing, 5 hours to prepare for the hearing, 7.5 hours billed for travel to and attendance at the one-day hearing, as well as .5 hours for preparation of the costs statement are reasonable. Further, I grant another hour for the costs assessment itself. In total, I find that Ms. Thevaranjan is entitled to 36.2 hours at $150 per hour, totalling $5,430 for legal fees in this arbitration, plus $271.50 GST.

The parties agreed during submissions that Dr. Butchey’s ($53) and Dr. Lo’s ($113.02) medical records should be struck off the disbursements. Ms. Thevaranjan’s lawyer basically agreed in submissions that both Dr. Yeung’s updated medical records ($88.31) and his report ($530) had not been produced in this arbitration, as well as the OHIP summary ($40) of her health care services. I am unable to find the records from Scarborough Grace Hospital ($212) in the medical briefs filed or other records, and there is no evidence supporting that this expense was incurred in this proceeding.

I have subtracted the above items ($1,036.33) from the $6,848.83 billed disbursements, and find that Ms. Thevaranjan is entitled to $5,812.50 for her disbursements in this arbitration.

March 6, 2008

Fred Sampliner Arbitrator

Date