Financial Services Commission of Ontario / Commission des services financiers de l'Ontario
Neutral Citation: 2009 ONFSCDRS 160
Appeal P07-00017
OFFICE OF THE DIRECTOR OF ARBITRATIONS
ALON ROOZ Applicant for Appeal and Variation/Revocation
and
CERTAS DIRECT INSURANCE COMPANY and SERGIY ZAPISNOY Respondents on Appeal and Variation/Revocation
BEFORE: David Evans
REPRESENTATIVES: Arvin Gupta for Mr. Alon Rooz Ryan M. Naimark for Certas Direct Insurance Company No one appearing for Mr. Zapisnoy
HEARING DATE: August 12, 2009
APPEAL and VARIATION/REVOCATION EXPENSES ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Certas Direct Insurance Company is entitled to its expenses of this appeal and application for variation/revocation proceeding fixed in the amount of $2,246.60, inclusive of GST.
November 18, 2009
David Evans Director's Delegate
REASONS FOR DECISION
I. NATURE OF THE APPEAL
The arbitration order dated April 25, 2007, required Mr. Alon Rooz, former counsel for Mr. Zapisnoy, to personally pay the arbitration expenses of Certas Direct Insurance Company. In a decision dated March 26, 2009, I denied Mr. Rooz's appeal and application for variation/revocation of that order. Certas now seeks its expenses of the appeal and variation/revocation proceeding.
II. BACKGROUND AND ANALYSIS
The criteria for awarding expenses are set out in Rule 75 of the Dispute Resolution Practice Code. The parties agree that the only relevant criterion is success.
Mr. Zapisnoy has not participated in any aspect of the appeal, and the parties agree that he is not liable to pay any related expenses.
Mr. Rooz submits that the expenses claim by Certas of $3,822.07 inclusive of GST ($3408.37 for counsel fees and $413.70 for disbursements) should be reduced because of his success in a preliminary issue on appeal and because the claim is excessive.
The preliminary issue was whether Mr. Rooz had to serve Mr. Zapisnoy with the Notices of Appeal and of Variation/Revocation, in case he would be exposed to expenses. Certas took the position that if Mr. Rooz did not have to pay the expenses it had been awarded in the arbitration decision, then Mr. Zapisnoy should be held liable for them. However, Delegate Makepeace accepted the submission of Mr. Rooz that, if the appeal or variation/revocation application succeeded, a further hearing would have to be held to decide whether Mr. Zapisnoy should be ordered to pay the insurer's expenses. Mr. Rooz submits that in light of his success on this point, he should be entitled to expenses at $150 an hour to offset those of Certas.
I am not persuaded that the criterion in Rule 75.1(a), "each party's degree of success in the outcome of the proceeding," should be parsed so finely as to consider every procedural step along the way, no matter how narrow or relatively minor. Excessive procedural steps can be dealt with under Rule 75.1(d), conduct prolonging, obstructing, or hindering a proceeding. In this case, I find that Certas raised an entirely legitimate question. There was also no determination of the issue, only its deferral pending the appeal, which Mr. Rooz lost. Therefore, I do not consider that Mr. Rooz is entitled to any offsetting expenses in the circumstances of this case.
Mr. Rooz submits that the 37.2 hours for preparation and attendance at the appeal is excessive, given that there was no transcript to review, the submissions by Certas were brief, and, as Mr. Rooz puts it in his submissions, "The only complicating factor in this appeal was the attempt by the Respondent to force the Appellant to serve Mr. Zapisnoy." He submits that an appropriate ratio for preparation time to attendance time is 1:1, allowing a total time of about 10 hours.
I agree with the comment by Director's Delegate Blackman in Mr. C and Kingsway General Insurance Company, (FSCO P08-00025, September 18, 2009) that ratios in appeals are of limited assistance, given that the bulk of work done in appeals goes to preparing written submissions for relatively short oral submissions and that brevity may in fact reflect a considerable amount of work.
Furthermore, Mr. Rooz omits to note in his submission the complicating factor that he sought to file fresh evidence, in support of which he filed a lengthy affidavit to which Certas had to respond. As part of my decision, I ultimately rejected the additional evidence, and in light of Certas' success on appeal, it is entitled to its expenses related to that response.
On the other hand, I do accept Mr. Rooz's submission that this case did not require the kind of detailed review of transcripts that was necessary in Certas Direct Insurance Company and Kwatemaa, (FSCO P06-00022, July 8, 2008) or Farmers' Mutual Insurance Company and Crossey, (FSCO P05-00028, September 19, 2007), where 30 and 50 hours of preparation and attendance time, respectively, were allowed.
My notes show that the hearing took the whole day, with most of that time taken up by Mr. Rooz. In that light, I award $2000 inclusive of GST for preparation and attendance at the hearing and at this expense hearing. At Mr. Naimark's rate of $87.26, or $91.62 including GST, this represents about 22 hours in total, based on 7 hours for the day of the hearing, 14 hours for preparation, and 1 hour for attendance and preparation at the expense hearing.
With respect to the disbursements, Certas provided a revised bill of costs with respect to the disbursements. However, it includes $159.14 in process serving and filing fees that it failed to establish were relevant to the appeal. I do allow the expenses for photocopying, courier and research, for a total of $246.60, inclusive of GST.
Accordingly, I find that Certas is entitled to its expenses of this appeal proceeding fixed in the amount of $2,246.60, inclusive of GST.
November 18, 2009
David Evans Director's Delegate