Neutral Citation: 2011 ONFSCDRS 24 FSCO A07-001740

BETWEEN:

ROSA BENJAMIN Applicant

and

BELAIR INSURANCE COMPANY INC. Insurer

DECISION ON EXPENSES

Before: Arbitrator Denise Ashby Heard: Written submissions concluded January 7, 2011 Appearances: Joel P. Freedman for Ms. Benjamin Tobin B. Horton for Belair Insurance Company Inc.

Issues:

The Applicant, Rosa Benjamin, was injured in a motor vehicle accident on June 10, 2004. In a decision dated August 26, 2010, I dealt with her claims for statutory accident benefits under the Schedule.¹

The issues in this further hearing are:

Is Belair liable to pay Rosa Benjamin’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act and, if Belair is liable for her expenses, what is the quantum of her expenses?
Is Rosa Benjamin liable to pay Belair’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act and, in the event Ms. Benjamin is liable to pay Belair’s expenses, what is the quantum of its expenses?
Is Belair liable to pay Rosa Benjamin’s expenses in respect of the expense hearing pursuant to subsection 282(11) of the Insurance Act?

Result:

Belair Insurance Company shall pay Ms. Benjamin the sum of $8,764.14 plus HST in respect of her expenses of the Arbitration and Expense Hearings.

ANALYSIS:

In my decision of August 26, 2010, I dealt with Ms. Benjamin’s claim for certain statutory accident benefits under the Schedule and ordered Belair to pay Ms. Benjamin a weekly caregiver benefit of $250.00 from June 10, 2004 to July 6, 2004, and at the rate of $75.00 from July 7, 2004 to June 14, 2005, as well as a weekly housekeeping benefit at the rate of $60.00 from October 16, 2004 to June 10, 2006, and a seasonal weekly home maintenance benefit, together with interest on these overdue benefits.

Entitlement to Expenses:

Ms. Benjamin claims her expenses in the amount of $10,209.74 inclusive of the then GST. Belair claims its expenses in the amount of $6,433.44 inclusive of the then GST. In the alternative, Belair submits that each party should bear its own expenses.

The criteria for awarding expenses and the amount of expenses an arbitrator may order are set out in Section F of the Dispute Resolution Practice Code as Schedule to R.R.O. 1990, Reg. 664, made under the Insurance Act, as amended to O. Reg. 275/03. The criteria are: degree of success, whether there were written offers to settle, the novelty of the issues, the conduct of the parties and whether any part of the proceeding was improper, vexatious or unnecessary.

Ms. Benjamin was partially successful. There were no novel issues raised and the parties’ participation in the proceeding was efficient and appropriate. The parties agree that Belair submitted an offer for the full and final settlement of all claims Ms. Benjamin might have against Belair in respect of her accident on June 10, 2004.

I was not provided with a copy of Belair’s offer to settle. Section F of the Code requires that offers be in writing. Therefore, I have excluded it from my consideration. If I have erred in excluding the offer, I find that Belair’s offer does not preclude Ms. Benjamin from being entitled to her expenses of the hearing. It was for a full and final resolution of Ms. Benjamin’s entitlements pursuant to the Schedule. The issues before me did not deal with medical benefits and Ms. Benjamin has potential eligibility for medical benefits until June 10, 2014. I find that Ms. Benjamin reasonably chose to proceed to hearing on the issues in dispute while preserving her claim for future medical benefits notwithstanding Belair’s offer.

I agree with then Arbitrator Blackman’s observation in McLellan and Aviva Canada Inc. that requiring an applicant to be entirely successful in order to be awarded his or her expenses pursuant to the Regulation “would significantly lessen the need for an insurer to serve a meaningful, binding offer and greatly enhance the pressure for an insured to settle, even improvidently.”² Ms. Benjamin was partially successful and is therefore entitled to her expenses.

Quantum of Expenses:

Presently, the maximum hourly fee that can be awarded to an applicant’s counsel is $150.00. As Mr. Freedman was called to the Bar in 1968 and has specialized in personal injury work since 1973, I find he is entitled to an hourly rate of $150.00. The hourly rate allowed for the services of a law clerk is $23.00 as prescribed by Legal Aid Ontario’s fee schedule.

Generally, expenses are awarded on the basis of a ratio of preparation days to hearing days rather than a detailed assessment of the time spent. The issues in dispute were not complex and only Ms. Benjamin and her husband were called as witnesses. I find a ratio of 1.5 preparation days to each day of hearing reasonable in respect of counsel’s fees. I find a work day equals 7.5 hours. Thus, I assess 56.25 hours for counsel’s preparation time and attendance at the hearing. I award Ms. Benjamin $8,437.50 for counsel’s fees.

Ms. Benjamin has claimed 2.8 hours in respect of the services of a law clerk which I find to be reasonable. Therefore, I award $64.40 in respect of these services.

Ms. Benjamin claims $112.24 in respect of disbursements which I find to be reasonable and award in full.

On the basis of the foregoing, I find Ms. Benjamin to be entitled to $8,614.14 in respect of fees and disbursements plus HST.

EXPENSES:

Ms. Benjamin claimed her expenses of this proceeding. Mr. Freedman set 1 hour for review of my decision and preparation of a list of costs and expenses which I find to be very reasonable. Therefore, I award Ms. Benjamin expenses in respect of this expense hearing at $150.00 plus HST.

March 8, 2011

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario