Neutral Citation: 2009 ONFSCDRS 128 FSCO A07-001972

BETWEEN:

PARITOSH BHADA Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC. Insurer

Before: David Leitch Heard: June 19, 2009 and July 22, 2009, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Daniel Flatt and Gary Mazin for Mr. Bhada Alexander Lempp for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

On January 23, 2009, I issued a decision in relation to the Applicant’s claims for statutory accident benefits under the Schedule.¹ The “Result” portion of the decision reads as follows:

Security National was not entitled to reject Mr. Bhada’s claims on the ground that his Application for Accident Benefits was submitted after the time limit imposed by section 32(3) of the Schedule.
Mr. Bhada is not entitled to caregiver benefits.
Mr. Bhada is not entitled housekeeping benefits.
Mr. Bhada is not entitled to medical benefits for the treatment recommended in two treatment plans dated August 22 and November 15, 2006.
Mr. Bhada is entitled to $1,488.13 in respect of the cost of the examination recommended in an OCF-22 form dated August 29, 2006, plus interest from October 1, 2006.
Security National is not required to pay Mr. Bhada a special award.

The remaining issues are whether either party is entitled to expenses incurred in respect of this arbitration hearing and, if so, in what amount.

Result:

Security National is entitled to expenses in the amount of $6,552.19.

The relevant provisions governing expenses

Sections 282(11) and (11.2) of the Insurance Act state:

Expenses

(11) 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.

Liability of representative for costs

(11.2) An arbitrator may make an order requiring a person representing an insured person or an insurer for compensation in an arbitration proceeding to personally pay all or part of any expenses awarded against a party if the arbitrator is satisfied that,

(a) in respect of a representative of an insured person, the representative commenced or conducted the proceeding without authority from the insured person or did not advise the insured person that he or she could be liable to pay all or part of the expenses of the proceeding;

(b) in respect of a representative of an insured person, the representative caused expenses to be incurred without reasonable cause by advancing a frivolous or vexatious claim on behalf of the insured person; or

(c) the representative caused expenses to be incurred without reasonable cause or to be wasted by unreasonable delay or other default.

Non-application to solicitors

(11.3) Clause (11.2) (a) does not apply to a barrister or solicitor acting in the usual course of the practice of law.

The criteria to be applied in accordance with section 282(11) of the Insurance Act are set out in section 12 of Ontario Regulation 664, as amended. This Regulation, commonly known as the Expense Regulation, then incorporates by reference a Schedule of recoverable expenses which in turn incorporates the section of the Dispute Resolution Practice Code (the “Code”) specifying the rate at which legal fees can be recovered. Sections 12(2) to 12(4) of the Expense Regulation read as follows:

(2) An arbitrator shall, under subsection 282 (11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

Each party’s degree of success in the outcome of the proceeding.

Any written offers to settle made in accordance with subsection (3).

Whether novel issues are raised in the proceeding.

The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.

Whether any aspect of the proceeding was improper, vexatious or unnecessary.

Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation.

(3) Upon the request of the insurer or the insured person, the arbitrator shall, for the purposes of awarding expenses, take into account all written offers to settle, if any,

(a) that were made after the conclusion of mediation and before the conclusion of the arbitration; and

(b) that were made in accordance with the rules of practice and procedure applicable to the proceeding.

(4) If the arbitrator is requested to take into account a written offer under subsection (3), the arbitrator shall have regard to the terms of the offer, the timing of the offer, the response to the offer and the result of the proceeding.

In addition to entitlement to expenses, I must assess the amount of the award in accordance with the Schedule to the Expense Regulation and the section of the Code specifying the rate at which legal fees can be recovered. Sections 3 to 5 of the Schedule and the relevant part of the Code read as follows:

SCHEDULE: DISPUTE RESOLUTION EXPENSES (SUBSECTION 282 (11) OF THE ACT)

(1) The legal fees payable by the insured person or the insurer for the following matters may be awarded:

For all services performed before an arbitration, appeal, variation or revocation hearing.

For the preparation for an arbitration, appeal, variation or revocation hearing.

For attendance at an arbitration, appeal, variation or revocation hearing.

For services subsequent to an arbitration, appeal, variation or revocation hearing.

(2) The number of hours for which legal fees may be awarded shall be determined by the arbitrator, having regard to the criteria set out in subsection 12 (2) of this Regulation.

(3) The maximum amount that may be awarded for legal fees is the amount calculated using the hourly rates set out in the Dispute Resolution Practice Code published by the Ontario Insurance Commission or Financial Services Commission of Ontario, as it may be amended from time to time.

[Section 78.1 of the Dispute Resolution Practice Code, Fourth Edition, stipulates:

78.1 The maximum amount that may be awarded to an insured person or an insurer for legal fees, is an amount calculated using:

(a) the hourly rates established under the Legal Aid Services Act, 1998 for professional services in civil matters before the Ontario Superior Court of Justice; or

(b) the hourly rate referred to in Rule 78.1(a) adjusted to include, where appropriate, the experience allowance established under the Legal Aid Services Act, 1998;

Where an adjudicator is satisfied that a higher amount for legal fees to an insured person is justified, an hourly rate of up to $150 may be awarded.]

The amount of the following disbursements made by or on behalf of the insured person or the insurer may be awarded:

For long distance telephone, facsimile and other telecommunication charges.

For typing, printing and reproducing copies of documents.

For the delivery, by mail or courier, of items relating to the arbitration, appeal, variation or revocation hearing.

For other out-of-pocket expenses incurred in furtherance of the arbitration, appeal, variation or revocation hearing.

Any applicable taxes paid in respect of the expenses referred to in this section.

(1) The amount of the following witness fees paid by or on behalf of the insured person or the insurer may be awarded:

For the attendance of witnesses, in accordance with subsection (2).

For the attendance of an expert witness who gives opinion evidence at the arbitration or hearing or whose attendance is necessary, in accordance with subsection (3).

For a report prepared by an expert, provided to the other parties to the arbitration or hearing and necessary for the conduct of the arbitration or hearing, in accordance with subsection (4).

(2) The maximum amount that may be awarded for the attendance of a witness is the amount of the attendance allowance for the witness that may be allowed under Rule 58.05 of the rules of court as a disbursement.

(3) The maximum amount that may be awarded for the attendance of an expert witness is $200 per hour of attendance, up to a maximum of $1,600 per day.

(4) The amount of the expenses paid by or on behalf of the insured person or the insurer to an expert witness for preparation for a hearing at which the witness testifies may be awarded, to a maximum of $500.

(5) The amount of the expenses paid by or on behalf of the insured person or the insurer to an expert for the preparation of a report may be awarded, to a maximum of $1,500.

In the present case, only three of the six criteria specified in section 12(2) of the Expense Regulation are relevant: each party’s degree of success, written offers to settle and the conduct of a party or a party’s representative that tended to prolong the hearing. I will address each of these criteria in order to determine entitlement to expenses. I will then assess the amount of the expense award in accordance with the Schedule to the Expense Regulation.

Each party’s degree of success

At the commencement of the expense hearing on June 19, 2009, I gave each party a copy of an expense decision I had issued the day before, on June 18, 2009, in the case of N.I. and Allstate Insurance Company of Canada.² In that case, I quoted several passages from Arbitrator Feldman’s decision in Borissenko and RBC General Insurance Company³ and made certain observations of my own, as follows:

… if I am to draw a link between consumer protection and access to justice, on the one hand, and expense awards, on the other, I must find some language in the provisions governing expenses which can be interpreted as establishing this link.

I regretfully conclude that no such language can be found. In fact, the Expense Regulation has, over the years, been steadily stripped of the kind of language which could have arguably been interpreted to establish this link. Arbitrator Feldman described the evolution of the law on expenses in Borissenko and RBC General Insurance Company. He wrote:

Prior to November 1996, arbitration expenses could be awarded to applicants only and were often granted even to unsuccessful applicants. In December 1996, the Expense Regulation was amended to permit arbitrators to award expenses to insurers, based upon criteria fairly similar to those that are still in place. There was, however, one criterion that granted to arbitrators considerable latitude in the exercise of their discretion. An arbitrator could consider “any other matter related to the proceeding” that he or she considered “relevant to the issue of whether an award of expenses is justified”. Relying on this broad discretionary power (and notwithstanding the change in the regulation that permitted insurers to be awarded expenses), some arbitrators continued to award expenses to applicants who were only marginally successful and to decline to order applicants to pay the expenses of successful insurers.

Effective October 1, 2003, however, that broad criterion was removed from the Expense Regulation. As Director Draper stated in Pembridge Insurance Company and Howden [P02-00031, May 17, 2004], the new criteria (i.e., the removal of the broad, “any other matter” criterion) continued the “move toward a more results-based approach to expenses”.

However, Arbitrator Feldman went on to observe that, despite this “move toward a more results-based approach”, the current Expense Regulation still reflects a concern for consumer protection. He wrote:

There are many aspects of the current Expense Regulation that serve to protect applicants. Even an unsuccessful applicant is protected from having to pay expenses where he or she raises a novel issue or where the insurer has rejected a reasonable formal offer from the applicant or where the conduct (in relation to the arbitration proceeding) of the insurer or its counsel has otherwise been unreasonable. The potential liability of an applicant to legal fees is limited to the much-reduced Legal Aid rates (while an applicant’s counsel can be compensated at a higher rate). The exposure of an applicant to disbursements incurred by the insurer is also limited by the Expense Regulation in both type and quantum. Thus, there are many aspects of the Expense Regulation that reflect the “consumer protection” nature of this legislative scheme.

I am reluctant to accept this view. It is true that the current Expense Regulation still places limits on the potential exposure of each party to expenses incurred by the other party and that, in any given case, these limits may be more important to the insured person than to the insurer. But can these limits be properly described as “consumer protection” if they also protect insurers? There appears to be only one provision of the current Expense Regulation which protects insured persons any more than it protects insurers, namely, the provision in relation to potential liability for legal fees. In all other respects, the Expense Regulation either subjects both parties to the same rules or subjects one party to rules which would not, in any event, apply to the other. In my view, the difference in potential liability for legal fees cannot be interpreted, by itself, to establish a more generalized link between consumer protection and access to justice, on the one hand, and expense awards, on the other. For this reason, I think Arbitrator Feldman stated the law more accurately a few pages later in his decision when he wrote:

I do not agree with the proposition that the consumer protection nature of the Insurance Act permits me to ignore the clear and unambiguous wording of the only criteria that I am permitted by regulation to consider. For this same reason, I do not accept the submission that “imbalance of power” is a factor to be considered. The Expense Regulation specifically states that the listed criteria are the only ones to be considered. It specifically requires consideration of “[E]ach party’s degree of success”, not just that of the Applicant. As stated by Arbitrator Rogers recently in Waheed and RBC General Insurance Company [FSCO A06-000761 and A06-000856, February 28, 2008], “‘Imbalance of power’ cannot be imported to negate recognition of the Insurer’s degree of success.”

I wish to make another general observation about the “degree of success” criterion. In my view, the primary focus should be on the results obtained, not on the arguments made. I acknowledge that on any given issue, a party might make unsuccessful, perhaps even meritless, arguments and yet still achieve ultimate success on that issue. As I see it, any time wasted dealing with ill-founded arguments is best sanctioned under the criterion dealing with conduct that tends to prolong the proceeding, not under the “degree of success” criterion.

In the present case, the Applicant claimed four types of benefits and a special award. Since the Insurer rejected the claims on both procedural grounds and substantive grounds, I analysed both sets of arguments. I rejected the Insurer’s procedural argument but accepted its substantive arguments in relation to three of the four claims for benefits. I also denied the claim for a special award. It is these ultimate results which compel me to find that the Insurer achieved a much greater degree of success than did the Applicant. But while these results must be reflected in my expense award, so must the fact that the Applicant was successful in relation to one claim: he recovered the cost of an examination which the Insurer refused to pay.

Written offers to settle

Both parties made written offers to settle. The Applicant’s offer was made after mediation but before the Application for Arbitration was filed.⁴ It was for $25,448.69 and included both the claims advanced at the hearing and claims not advanced at the hearing, as described below. The Insurer’s offer was made the business day before the hearing was commenced and was two-pronged: $1,500 for all claims if accepted on that day or $1,000 for all claims if accepted on the day the hearing commenced.

Applicant’s counsel argued that his client obtained a better result than contemplated by the Insurer’s offer in more than one way. First, the Applicant recovered the cost of the disputed examination, $1,488.13, plus interest, for a total recovery that exceeded the Insurer’s larger offer of $1,500; and second, the Applicant retained the right to make future claims, a right he would have lost under the Insurer’s offer.

On the other hand, the Applicant’s own offer went well past the results he actually achieved. It included $6,000 for caregiver benefits, $3,500 for housekeeping expenses and $3,960.56 for medical benefits, none of which was recovered. Moreover, the value of the Applicant’s right to make future claims should not be exaggerated. He never claimed income replacement benefits; he failed to advance two of the claims mentioned in his offer to settle, $1,500 for “gym and instruction” and $2,000 for “future devices”; he did not seek medical treatment for the first four and a half months after the accident; and he did not complete the treatment recommended in the second disputed treatment plan. I acknowledge that his success in relation to the disputed examination opens up at least the possibility of future psychological treatment but his own offer to settle estimated the cost of such treatment at only $2,000. The remaining items in the Applicant’s total offer of $25,448.69 consisted of $1,488.13 for the disputed examination, $3,000 for unspecified “future treatment” and $2,000 for costs.

In short, while the final result fell between the two offers, the Insurer’s offer was much closer. But while I take this fact into account, I also take into account the fact that by rejecting the Insurer’s offer and proceeding to the hearing, the Applicant ultimately recovered slightly more money and retains slightly greater rights than he would have under the Insurer’s offer.

Conduct of a party or a party’s representative that tended to prolong the hearing

There are two issues in relation to this criterion.

The first is whether the Insurer’s procedural argument was so lacking in merit as to justify a finding that it tended to prolong the hearing. While I rejected the Insurer’s argument, I am not prepared to find that it was so entirely without merit as to justify an expense sanction under this criterion. Moreover, the only evidence in relation to this issue was a single letter. It took little time to deal with in argument.

The second issue was described, in part, in my letter to Mr. Mazin following the first day of the Expense Hearing. It reads as follows:

The Expense Hearing in this matter commenced on Friday, June 19, 2009. At that time, Mr. Lempp alleged that the conduct of Mr. Riaz Ahmed, the Applicant’s representative at the Main Hearing, tended to prolong the proceeding.

In particular, he referred to the fact that on the morning of the first day of the hearing, Mr. Ahmed, an articling student, stated that he would be calling Mr. Mazin, his principal, as a witness. Questions were immediately raised about the propriety of this conduct and I indicated that I would need to hear submissions. After consulting with Mr. Mazin over the telephone more than once, Mr. Ahmed eventually advised that he would not be calling Mr. Mazin as a witness after all. Nevertheless, Mr. Lempp submitted that dealing with this issue took time and caused unreasonable delay.

As a result, I am writing to place Mr. Mazin on notice that, pursuant to section 282 (11.1)(c) of the Insurance Act, I may make an expense order against him personally. [Emphasis in the original]

In accordance with 282(11.1)(d) of the Insurance Act, Mr. Mazin will be given a reasonable opportunity to make representations in relation to this issue.

Mr. Mazin replied that he wanted to obtain a transcript of the main hearing before being required to make representations. That prompted me to write two further letters to him dated July 3 and July 13, 2009. The second of those letters reads as follows:

As stated in my letter July 3, 2009, any transcript of the arbitration hearing will not form part of the record. I cannot and will not be issuing any orders in relation to its production.

In any event, at the hearing on July 22, 2009 [the proposed date for receiving Mr. Mazin’s submissions], my primary concern will be to learn why Mr. Mazin wished to testify on behalf of his client. It is too late for Mr. Mazin to make submissions about whether he could testify on behalf of his client. He instructed his student to decline the opportunity to make submissions on that point at the hearing.

Mr. Lempp will confirm that I refused to allow him to tell me anything about why Mr. Mazin wished to testify on behalf of his client until I had first heard submissions about whether Mr. Mazin could testify on behalf of his client. There will, therefore, be nothing in the transcript about why Mr. Mazin wished to testify on behalf of his client.

If Mr. Mazin can demonstrate some valid reason for wanting to testify, I may take that into consideration in deciding expenses. On the other hand, if he cannot demonstrate some valid reason for wanting to testify, I may also take that into consideration in deciding whether he should be required to personally pay expenses.

When Mr. Mazin appeared before me on July 22, 2009, he explained the reason why he wanted to appear to testify on behalf of his client. He stated that a week or so prior to the hearing, he had a telephone conversation with Ms. Wiezel, one of the lawyers representing the Insurer, in which she stated that the Insurer had delayed paying benefits because it believed that the accident in question had never taken place and that the Applicant was making fraudulent claims. Mr. Mazin also produced correspondence establishing that he had informed both Mr. Lempp and the Commission of his intention to testify, his reason for wanting to testify and his decision to have the hearing conducted by his articling student, Mr. Riaz Ahmed.

In my view, this was a valid reason for Mr. Mazin to want to testify. Evidence of the kind Mr. Mazin wanted to provide could indeed have been significant in relation to the Applicant’s claim for a special award. Since I did not hear submissions about whether Mr. Mazin could or should testify while his articling student continued to act for the Applicant, I make no comment about that. I note, however, that when I expressed concern at the hearing about the propriety of Mr. Mazin’s proposed course of conduct, Mr. Lempp appeared to share that concern. Had he expressed that concern to Mr. Mazin prior to the hearing, the issue might have evolved differently. I further note that once my concerns were brought to Mr. Mazin’s attention, he decided not to testify⁵, thus eliminating the need to spend any further time dealing with the issue. In these circumstances, I am not prepared to find that Mr. Mazin’s conduct tended to prolong the hearing. In sum, I find that this criterion has no bearing on the issue of expenses.

Having regard to the other two criteria, I conclude that the Applicant is not entitled to recover any expenses and the Insurer is entitled to 60% of its recoverable expenses. The 40% reduction in the Insurer’s recovery reflect a 20% reduction in respect of the degree of success criterion and a further 20% reduction in respect of the written offers criterion.

Assessment of expenses

The Insurer seeks to recover professional fees totalling $30,924.51 based on the following:

332.65 hours worth of lawyer’s time, 193.95 hours for Ms. Wiezel and 138.7 for Mr. Lempp, both claimed at the rate of $87.26;
28.8 hours worth of articling student’s time claimed at the rate of $46.00 per hour; and
24.9 hours worth of law clerk’s time claimed at the rate of $23.00 per hour.

In my view, this was not a case which justified professional fees in excess of $30,000. Of course, legal fees are awarded according to the same criteria as are used to determine entitlement to expenses.⁶ However, even reducing the Insurer’s recovery to 60% of the amount claimed would still produce an award in excess of $18,000. My analysis of the Insurer’s entitlement to professional fees produces a much lower award.

I begin by observing that, in my view, the Insurer was quite entitled to retain Ms. Wiezel as its lawyer at the hearing even though it knew, or ought to have known, that another lawyer would have to take over in the event she decided to give evidence about her alleged conversation with Mr. Mazin. Beyond that, however, there was nothing about this case which justified the involvement of a second lawyer. There were no unusual or complex issues. Yet, as Mr. Lempp acknowledged at the expense hearing, he and Ms. Wiezel both worked on this file even before the emergence of the issue involving Mr. Mazin’s alleged conversation with Ms. Wiezel. The Insurer was obviously free to involve more than one lawyer if it liked. But as I see this case, the expense of a second lawyer was only justified after this new issue emerged. I do not overlook the need for the second lawyer to have a complete understanding of the case. Still, the first lawyer should have been able to explain the issues in this case with very little difficulty. Moreover, as it turned out, the need for a second lawyer disappeared by noon of the first day of the hearing.

The hearing then went on for another three and half days and involved approximately 24 hours of hearing time. Since the issues were straightforward, I find that the appropriate ratio of preparation time to hearing time was 2 for a total of 72 hours worth of one lawyer’s time. I then add 12 hours to reflect the time spent by a second lawyer. Applying the unchallenged rate of $87.26 per hour⁷, this number of hours, 84, generates legal fees in the amount of $7,329.84. I increase this figure to a subtotal $8,000 in recognition of time spent by the law clerk and then add a further 5% for GST, for a total of $8,400 for professional fees.

In addition, the Insurer seeks disbursements in the amount of $7,121.94. I summarize below the documentary evidence presented, followed by the amounts I allow:

Dr. Cowman invoiced the Insurer for 8 hours of services at the rate of $275 per hour, including two hours of meeting time, three hours of preparation including costs of file retrieval, 1.5 hours for travel and 1.5 hours of attendance at the hearing, for a total account of $2,200. In accordance with section 5 of the Schedule to the Expense Regulation, I allow $300 for preparation and $400 for two hours of attendance at the hearing for a subtotal of $700 plus GST for a total of $735.
Dr. Bereznick invoiced the Insurer for “travel, meeting on December 10, 2008 [the day he testified] and time spent in arbitration”, for a total account of $3,000. In accordance with section 5 of the Schedule to the Expense Regulation, I allow $300 for preparation, $400 for two hours of attendance at the hearing for a subtotal of $700 plus GST for a total of $735.
The Insurer sought to recover expenses for serving summonses. One document indicated that the amount claimed was $437.54. I am prepared to allow $200 plus GST for a total of $210 for service of Ms. Crystal Hutahajan of Johnson Controls and Mr. Phil Caradona of Workable Centres. Their attendances were not required but I understand how they might reasonably have been required. I allow no additional amounts in respect of the attendance of Drs. Cowman and Bereznick. While the Applicant’s wife was also apparently served by the Insurer, I cannot understand why this was reasonably necessary; she testified on behalf of the Applicant.
The Insurer sought to recover $1,906.80 for court reporting services and $722.66 for transcripts. These kinds of expenses are not recoverable under section 4 of the Schedule to the Expense Regulation as explained by Director’s Delegate Evans in Kingway General Insurance Company and Pereira:

Kingsway also seeks to recover the cost of the transcript. Rule 74.2 of the Dispute Resolution Practice Code specifically provides that a party hiring a recording service must directly pay the person or agency providing the reporting service, and Rule 74.3 provides that, where a party orders all or a portion of the transcript of a proceeding, the party must directly pay the person or agency providing the transcript. There is no provision in the Schedule to the Expense Regulation allowing for the recovery of the cost of transcripts similar to that allowing for the recovery of the filing fees paid by an insured when applying for arbitration (Schedule, s. 1) or the filing fees paid by an insured or an insurer when appealing an order (s. 2). There is also no provision similar to the Schedule’s specific allowance for witness expenses and for the cost of expert reports (s. 5). The closest to a “basket clause” where the transcript expense might fit is in s. 4.4, which provides for the payment of “other out-of-pocket expenses incurred in furtherance of the arbitration, appeal, variation or revocation hearing.” However, the other items listed in s. 4 are telecommunication charges (4.1), typing, printing and reproducing copies of documents (4.2), mail or courier delivery (4.3), and taxes on these expenses (4.5). I find the costs of transcripts (or the cost of a court reporter, for that matter) do not fit into that context and that the phrase “other out-of-pocket expenses” more likely refers to the relatively small expenses referred to in the rest of that section. In that regard, I have sympathy for the conclusion of the arbitrator in Singh and Wawanesa Mutual Insurance Company, (FSCO A02-001401, May 18, 2004), who found that the cost of a reporting service was not recoverable as an expense after accepting this submission:

Mr. Gillen argued that since court reporter’s fees can be significant, it could not have been the legislature's intention to include them as “other out-of-pocket expenses” when it specifically placed a cap on less costly disbursements such as preparation of an expert witness for a hearing.

It is the option of a party to request the attendance of a court reporter at a hearing, as is the option to obtain and file the transcript, and it is only in very limited circumstances that parties have ever been required to order and produce a transcript.⁸ Other expenses that might be described as optional – in that parties have a great deal of discretion in preparing their cases – are subject to caps, such as the amounts allowed for preparing a witness (s. 5(4)), calling a witness (s. 5(3)), or for preparing a report (s. 5(5)). However, no caps are placed on expenses for court reporters or transcripts, although they may add up to thousands of dollars. This suggests that transcripts are not meant to be recoverable as expenses.⁹

I agree with, and in any event am bound by, these observations. I would only add that if these kinds of expenses were recoverable, one would expect them to be specifically mentioned in the Schedule to the Expense Regulation as they are in Schedule 6 of the Legal Aid Tariff. I, therefore, disallow these disbursements.

The Insurer sought to recover record fees, photocopying charges and one parking expense. All were supported by receipts which total $840.32. I allow these claims under section 4 of the Schedule to the Expense Regulation.

Since the total of these fees and disbursements is $10,920.32, I conclude that the Insurer is entitled to recover 60% of that amount in expenses: $6,552.19.

September 25, 2009

David Leitch Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Security National is entitled to expenses in the amount of $6,559.19.