Neutral Citation: 2009 ONFSCDRS 8

FSCO A07-002237

BETWEEN:

FATEMEH SUFI Applicant

and

AVIVA CANADA INC. Insurer

ASSESSMENT OF EXPENSES

Before: Arbitrator Suesan Alves

Heard: By written submissions which were due by January 5, 2009

Appearances: Rizwan Wancho for Ms. Sufi Joseph Griffiths for Aviva Canada Inc.

Issue:

In a decision dated October 29, 2008, I permitted Ms. Sufi to withdraw her arbitration application, awarded Aviva expenses and ordered the Applicant’s representative to personally pay those expenses as agreed upon or assessed. Aviva requested an assessment of expenses as no agreement had been reached with respect to the amount of expenses.

The assessment of expenses was heard by written submissions which were to be filed by January 5, 2009. Aviva submitted its Bill of Expenses; however, the Applicant’s representative filed no submissions.

The issue in this hearing is:

What is the assessed amount of Aviva’s expenses?

Result:

Aviva’s expenses are assessed in the amount of $3,063.68

EVIDENCE AND ANALYSIS:

Background

Ms. Sufi applied for arbitration in relation to her claims for physical rehabilitation, chiropractic treatment, cost of examinations, interest, expenses and a special award. Aviva disputed all of Ms. Sufi's claims and claimed its arbitration expenses.

Aviva alleged that Ms. Sufi’s claims for physical rehabilitation had not been mediated and therefore could not be arbitrated. Aviva also alleged that Ms. Sufi’s claim for the cost of examinations was time barred. Ms. Sufi disputed that there were any procedural defects in the claim she presented and a hearing was therefore scheduled to address the jurisdictional and time limits issues.

Aviva filed its written submissions on both issues. On the day after the Applicant's submissions were due, the Applicant’s representative purported to withdraw the arbitration application. Aviva did not oppose the withdrawal; however, it claimed its expenses which were unreasonably incurred. I permitted the Applicant to withdraw her arbitration application, and awarded Aviva its expenses from February 25, 2008, the date of the pre-hearing, to May 16 2008 when the arbitration application was withdrawn. I awarded Aviva the costs of preparing submissions on expenses as a term of withdrawal.

I also ordered Mr. Wancho, the Applicant's representative to pay Aviva’s expenses pursuant to subsection 282(11.2) (c) of the Insurance Act, R. S. O. 1990, c. I.8 as amended, because he caused Aviva to incur expenses without reasonable cause.

The Bill of Expenses

Aviva’s Bill of Expenses sets out Aviva’s claim of 40.5 hours for fees at the rate of $87.26 per hour, totalling $3,534.03, GST of $297.50 on fees; and its claim for disbursements of $64.39 and GST on disbursements of $3.32.

Mr. Wancho did not raise any disputes concerning Aviva’s Bill of Expenses. The Case Administrator contacted his office by telephone in follow-up, however, he did not file any submissions.

Fees

The criteria for determining the amount of expenses which may be awarded are prescribed by Ontario Regulation 664/90. The criteria are each party’s degree of success; written offers to settle; whether novel issues were raised; conduct of a party or her representative which tended to prolong the proceeding; and whether any aspect of the proceeding was improper, vexatious or unnecessary. These are the same criteria for determining entitlement to expenses ¹

For reasons given in my decision of October 29, 2008, the most significant criteria in this case are the conduct of the Applicant's representative which tended to prolong the proceeding and which rendered an aspect of the proceeding frivolous and vexatious.

In determining the number of hours of preparation time, arbitrators have historically used the Legal Aid Tariff guidelines as a reference point, or allowed a ratio of between one and four hours of preparation time for every hour of hearing time.²

Arbitrators have also concluded that such a yardstick is too crude a device on occasion to determine the reasonableness of fees claimed, particularly when additional time spent in preparation is reflected in decreased time spent in a formal arbitration hearing. For example in Argirovski and Allstate Insurance Company of Canada (FSCO A98-000816, March 14, 2000), Arbitrator Palmer stated: “Efficient use of the Commission’s time for hearings should be encouraged, not discouraged by setting inflexible ratios for preparation to hearing time.”

In this case, I find the ratio of between one to four hours of preparation time in relation to hearing time would be inappropriate because there was no hearing on the preliminary issue and the hearing dealing with entitlement to expenses was held by written submissions.

I find most of the hours claimed reasonable having regard to the criteria and all of the circumstances of this case, and allow them as follows:

Paragraph A of the Bill sets out 8.3 hours for services provided from the receipt of the arbitration application up to the date of the pre-hearing. However, expenses were awarded only from the date of the pre-hearing. I allow the costs of preparation for and attendance at the pre-hearing at one and a half hours.

Aviva claims a total of 32. 2 hours for services rendered in relation to the preliminary issues hearing and the expense hearing, set out in paragraphs B and C of the Bill of Expenses. I reduce this amount by one hour as there was no attendance at an expenses hearing as anticipated in the Bill. I otherwise find the hours claimed reasonable and allow them, having regard to the somewhat confusing claims presented by the Applicant which needed to be addressed in written submissions on the preliminary issues hearing. There was a resumption of the pre-hearing following the purported withdrawal of the arbitration. Aviva provided written submissions in relation to entitlement to expenses. I also find it reasonable to allow time for the preparation of the Bill of Expenses. The fees in paragraphs B and C are allowed at 31.2 hours. The total allowed in paragraphs A, B, and C is 32.7 hours.

In terms of the hourly rate, Mr. Griffiths was called to the Bar in 2002. Based on the experience allowance under the Legal Aid Tariff, I allow him the hourly rate of $87.26 per hour, as claimed.

In conclusion, I allow fees for 32.7 hours at the hourly rate of $87.26 for a total of $2,853.40. I also allow GST of 5% on those fees of $142.67.

Disbursements

Aviva claims a total of $64.39 for photocopies, long distance charges and couriers. I find the disbursements reasonable and allow them as claimed. I also allow GST claimed on the disbursements of $3.22.

Conclusion

In conclusion, I assess Aviva’s Bill of Expenses in the amount of $3,063.68

January 29, 2009

Suesan Alves Arbitrator

Date

Financial Services Commission of Ontario