Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 144
FSCO A08-000882
BETWEEN:
CAROLYN SCANLAN
by her Guardian of Property, Margaret Scanlan
Applicant
and
ST. PAUL FIRE & MARINE INSURANCE COMPANY
(TRAVELERS CASUALTY AND SURETY COMPANY OF CANADA)
Insurer
DECISION ON EXPENSES
Before: Richard Feldman
Heard: July 16, 2009 by teleconference and by written submissions received by October 14, 2009
Appearances: R. Bruce Nelson for the Applicant
Bruce Chambers for the Insurer
Issues:
The Applicant, Carolyn Scanlan, was injured in a motor vehicle accident on May 23, 1997. She applied for and received various statutory accident benefits from the Insurer, payable under the Schedule.1 A dispute arose between the parties concerning the Applicant’s entitlement to non-earner benefits. The parties were unable to resolve this dispute through mediation and Ms. Scanlan, through her Guardian of Property, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The following issues were identified to be in dispute at the commencement of the application:
Under Part III of the Schedule, is the Applicant entitled to non-earner benefits in the weekly amount of $320.00 from February 1, 2007 onwards?
Pursuant to section 46 of the Schedule, is the Applicant entitled to interest for the overdue payment of non-earner benefits?
Is either party liable to pay the other’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
The hearing of this application commenced on April 20, 2009 and continued through April 23, 2009. During that time, I heard testimony from eleven lay and expert witnesses. The hearing was scheduled to continue on July 6 and 7, 2009. Between April 23 and July 6, 2009, however, the parties were able to settle the issues of the Applicant’s entitlement to non-earner benefits and to interest on the overdue payment of such benefits. As a result, the hearing set for July 6 and 7, 2009 was cancelled. The parties also agreed that the Applicant is entitled to her expenses of this proceeding but were unable to agree on the amount of expenses to which she is entitled. The Applicant filed a Bill of Costs and, on July 16, 2009, I heard submissions (by teleconference) from counsel for both parties with respect to this sole remaining issue. The parties requested that I issue a “consent order” in accordance with the terms of their settlement (with respect to the issue of the Applicant’s entitlement to non-earner benefits and interest thereon) and include in that order my determination as to the amount of expenses to which the Applicant is entitled. Since this application involves a person under a disability, in accordance with Rule 10.2 of the Dispute Resolution Practice Code, I directed the parties to have the terms of the proposed settlement approved by a judge of the Superior Court of Justice.
On October 14, 2009, Mr. Nelson filed a copy of a Judgment issued on October 9, 2009 in Court File No. CV-09-544 from the Honourable Justice H. MacLeod-Beliveau. The Court did more than just approve the terms of the settlement as this Judgment actually orders the Insurer to pay to the Applicant non-earner benefits and interest thereon (plus expenses as determined by the Financial Services Commission of Ontario). On October 19, 2009, I advised the parties that since the Superior Court of Justice had already issued an order for payment of non-earner benefits and interest, I determined that it would be duplicative for me to also order the same relief and that, unless the parties objected, it was my intention to restrict this order to the issue of the quantum of expenses to which the Applicant is entitled and to issue my order on or about October 26, 2009. I have received no further submissions from the parties.
Since the Insurer does not dispute the Applicant’s entitlement to her legal expenses of this proceeding, the sole remaining issue in this hearing is:
- What is the amount of expenses to which the Applicant is entitled in respect of the arbitration under subsection 282(11) of the Insurance Act?
Result:
- The Insurer shall pay to the Applicant $21,490.38 for her expenses in respect of this arbitration proceeding, made up as follows:
a) $12,837.83 on account of fees (inclusive of GST); plus
b) $8,652.55 on account of disbursements (inclusive of GST).
Quantum of Expenses:
(a) Fees
For all legal services related to this proceeding (including preparation of the Application for Arbitration, preparation for and attendance at the pre-hearing conference and preparation for and attendance at the hearing), counsel for the Applicant is claiming compensation for 134.5 hours of legal services. At the hourly rates claimed, this represents a total claim for fees (inclusive of GST) of $30,858.80.
The Insurer does not oppose the number of hours sought by the Applicant’s counsel. The Insurer does, however, object to the Applicant’s counsel seeking compensation at hourly rates greater than those permitted under the Expense Regulation and urged that the Applicant’s claim be limited to the maximum amounts permitted thereunder. Counsel for the Applicant conceded that I had no jurisdiction to award legal fees at rates greater than the maximum amounts set out in the Expense Regulation. Applying the maximum hourly rates permitted under the Expense Regulation to the number of hours claimed, I calculated the fees to be as follows:
Hours
Hourly Rate ($)
Fee ($)
R. B. Nelson
68.4
150.00
10,260.00
Lulama Kotze (student-at-law)
19.4
46.00
892.40
Nancy Byvelds (paralegal)
41.7
23.00
959.10
Elaine Garrett (law clerk)
5.0
23.00
115.00
Subtotal
12,226.50
GST
611.33
Total Fees
12,837.83
The Insurer agreed with this calculation and, ultimately, consented to pay the Applicant’s legal fees in the amount of $12,837.83.
(b) Disbursements
The Applicant has claimed $10,710.71 in disbursements. The Insurer’s only challenge to the disbursements claimed is with respect to amounts claimed to compensate various witnesses for their time travelling to and from the hearing. The Insurer contends that, although a witness is entitled to conduct money and to be compensated for certain out-of-pocket expenses related to appearing as a witness, there is no provision of the Expense Regulation that permits a witness to be compensated for their travel time. The amounts in dispute are as follows:
Amount Claimed for Travel Time (including any GST claimed)
Joy Beazley
839.16
(799.20 + GST)
Kindrey Rowland
437.50
Kim Doogan
241.50
(230.00 +GST)
Geoffrey Miles
150.00
Carol Moore
150.00
Tracy Milner
240.00
Total
2,058.16
Neither party filed any case law on this point.
All of the decisions that I have found on this point 2 state that, although a witness is entitled to be compensated under the Expense Regulation for certain travel costs (such as a mileage allowance and compensation for meals and overnight accommodations if the witness must travel from out of town), a witness is not entitled under the Expense Regulation to be compensated for their travel time (other than the witness fee payable under Tariff A to the Rules of Civil Procedure). Given that there is no express provision of the Expense Regulation that permits such a claim and no jurisprudence to support the Applicant’s position, I am not inclined to permit this part of the Applicant’s claim for disbursements.
I shall, therefore, order the Insurer to pay the Applicant’s legal disbursements in the amount of $8,652.55 ($10,710.71 less $2,058.16), inclusive of GST.
Conclusion:
Pursuant to subsection 282(11) of the Insurance Act, I find that the Applicant is entitled to her expenses with respect to this proceeding in the total amount of $21,490.38 (inclusive of GST).3 An order shall be issued in accordance with the foregoing reasons.
October 26, 2009
Richard Feldman Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 144
FSCO A08-000882
BETWEEN:
CAROLYN SCANLAN
by her Guardian of Property, Margaret Scanlan
Applicant
and
ST. PAUL FIRE & MARINE INSURANCE COMPANY
(TRAVELERS CASUALTY AND SURETY COMPANY OF CANADA)
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The Insurer shall pay to the Applicant $21,490.38 for her expenses in respect of this arbitration proceeding, made up as follows:
a) $12,837.83 on account of fees (inclusive of GST); plus
b) $8,652.55 on account of disbursements (inclusive of GST).
October 26, 2009
Richard Feldman Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- See Donohue and State Farm Mutual Automobile Insurance Company (OIC A-006756, February 7, 1995); Henri and Allstate Insurance Company of Canada (OIC A-007954, August 8, 1997); Epps and Co-operators General Insurance Company (OIC A-002340, September 3, 1993), upheld on appeal (OIC P-002340, December 14, 1994,); and B.M. and State Farm Mutual Automobile Insurance Company (FSCO A97-000928, January 18, 2000), letter decision.
- $12,837.83 for fees plus $8,652.55 for disbursements.