Neutral Citation: 2009 ONFSCDRS 127 FSCO A07-001290

BETWEEN:

DIANE BRAZIER Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

Before: Robert Bujold Heard: Written submissions received by August 24, 2009 Appearances: P. Michael Rotondo for Ms. Brazier Aldo Picchetti for RBC General Insurance Company

Issues:

The Applicant, Diane Brazier, was injured in a motor vehicle accident on September 15, 2005. In a decision dated May 28, 2009, I dealt with her claims for statutory accident benefits under the Schedule.¹ I found that Ms. Brazier was entitled to receive income replacement benefits from April 4, 2006 to date and ongoing, at the rate of $385.56 per week, with interest. I also found that Ms. Brazier was entitled to a special award and set out a timetable for written submissions on the appropriate quantum of the special award, if the parties were unable to negotiate an amount on their own.²

With respect to the issue of expenses of the arbitration, the parties were advised that they could seek a determination in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) (the “Code”), in the event that they could not reach agreement between themselves.

By letter dated June 26, 2009, Ms. Brazier’s counsel, Mr. Rotondo, provided his Bill of Costs dated June 25, 2009. By letter dated August 24, 2009, RBC’s counsel, Mr. Picchetti, provided submissions in response to the Bill of Costs. Mr. Rotondo delivered reply submissions dated September 2, 2009 which were received by fax on September 3, 2009. The deadline for reply submissions was August 31, 2009. As a result, the reply submissions were not accepted.

RBC did not take issue with Ms. Brazier’s entitlement to her expenses of the arbitration. The only issue in this further hearing is:

What is the amount of the expenses to which Ms. Brazier is entitled?

Result:

Ms. Brazier is entitled to her expenses in the amount of $11,526.32 inclusive of G.S.T.

EVIDENCE AND ANALYSIS:

Fees

Mr. Rotondo’s Bill of Costs dated June 25, 2009 claims fees of $9,336.57 plus G.S.T. thereon for a total of $9,703.40.

The fees claimed are comprised of just over 60 hours at $150.00 per hour for Mr. Rotondo’s services rendered between June 2007 and May 2009. Mr. Rotondo has 9 years experience. Rule 78.1 of the Code allows for an hourly rate of up to $150.00 for legal fees for an insured person, where justified. I find an hourly rate of $150.00 for Mr. Rotondo’s services to be reasonable and justified, given his years of experience. I note that approximately 24 hours, or 40% of Mr. Rotondo’s fees, relate to time spent attending at the hearing. The remaining 60% of his fees relate to time spent preparing for hearing.³ I find this to be a reasonable ratio of hearing time to preparation time.

The claim for fees is also comprised of just under 12 hours at $23.00 per hour for services rendered by Mr. Rotondo’s law clerk. I find both the hourly rate of $23.00 and the number of hours claimed for the services of Mr. Rotondo’s law clerk to be reasonable.

In his response submissions on behalf of RBC, Mr. Picchetti did not take issue with the claim for fees.

Ms. Brazier is therefore awarded her legal fees in the amount of $9,703.40 inclusive of G.S.T.

Disbursements

Mr. Rotondo’s Bill of Costs also claimed disbursements in the amount of $3,018.07 inclusive of G.S.T.

Mr. Picchetti did not take issue with most of the disbursements claimed.

The two disbursement items in dispute relate to attendance fees for expert witnesses. Mr. Rotondo claimed $1,050.00 for the attendance of Dr. Barrett and $1,245.15 for the attendance of Dr. Young.

As Mr. Picchetti rightly notes, the amount that may be awarded for the attendance of expert witnesses is prescribed in the Schedule to the Expense Regulation⁴ made pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, as amended. This Schedule restricts the amount that may be awarded for the attendance of an expert witness to $200.00 per hour of attendance.

Mr. Picchetti submitted that Dr. Barrett had given evidence for approximately 2.5 hours and, as a result, the maximum amount that could be awarded for his attendance would be $500.00, not the $1,050.00 claimed. Likewise, Dr. Young attended for approximately 3 hours and the maximum amount for his attendance therefore would be $600.00, not the $1,245.15 claimed.

I do not have clear records of the exact time spent by either of these witnesses to attend and give their evidence at the hearing. However, Mr. Picchetti’s estimates appear to be fair approximations and Mr. Rotondo did not dispute these estimates.

I therefore accept Mr. Picchetti’s submission that the amounts permitted for the attendance of Dr. Barrett and Dr. Young should be reduced to $500.00 and $600.00, respectively.

All other disbursement claimed by Mr. Rotondo for filing fees, photocopies, witness attendance, process serving and courier charges appear reasonable and within the limits permitted by the Expense Regulation. As noted, Mr. Picchetti did not take issue with these other disbursements.

Ms. Brazier is therefore awarded her disbursements in the amount of $1,822.92 inclusive of G.S.T.

Conclusion

Ms. Brazier is entitled to her expenses in the amount of $11,526.32 inclusive of G.S.T.

September 21, 2009

Robert Bujold Arbitrator

Financial Services Commission of Ontario