Jeyanathan Anthonypillai and Anne Arulappu v. TD Home and Auto Insurance Company, 2011 ONFSCDRS 41

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 41

FSCO A09-002810 and FSCO A09-002809

BETWEEN:

JEYANATHAN ANTHONYPILLAI and ANNE ARULAPPU

Applicants

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

OF AN INTERIM BENEFIT MOTION

Before: Robert A. Kominar

Heard: November 26, 2010 through January 21, 2011

Appearances: David S. Wilson and Alex Voudouris for Mr. Anthonypillai and Ms. Arulappu

Janet S. Young and George Frank for TD Home and Auto Insurance Company

Issues:

The Applicants, Jeyanathan Anthonypillai and Anne Arulappu, were injured in a motor vehicle accident on August 10, 2008. In a decision letter dated November 30, 2010, I confirmed that the parties had advised me that they resolved the claims for interim benefits but that they were unable to agree on expenses of the interim benefits motion and wanted time to discuss the matter. I later heard submissions from both counsel on the matter during ongoing proceedings and advised that I found that the Applicants were entitled to reasonable expenses on the motion. Subsequent to that, I requested that Mr. Wilson provide dockets for time expended and disbursements related to this motion in order to quantify the expenses which the Applicants are entitled to.

Result:

Mr. Anthonypillai and Ms. Arulappu are jointly entitled to expenses on the interim benefts motion in the amount of $19,846.22, inclusive of HST.

EVIDENCE AND ANALYSIS:

In brief, the Applicants and TD were, through significant efforts which I applaud, able to resolve the question of entitlement to interim benefits between themselves just prior to the interim motion hearing. Given the history of these files, this was no small accomplishment in my view. Any hearing that would have been required would no doubt have taken many days and likely been quite adversarial. Part of their agreement was that expenses on the interim benefits motion were to either be resolved between the parties later, or else subjected to an assessment at the Commission if necessary.

Mr. Wilson ultimately advised the Commission that no agreement on expenses was possible and therefore requested that they be assessed. On November 26, 2010, I heard initial submissions from the parties as to entitlement to expenses and advised them by letter on November 30, 2010 that my finding was that the Applicants were entitled to reasonable expenses on the motion, primarily due to their success in obtaining an agreement for TD to pay interim expenses to them. Mr. Wilson subsequently provided written dockets to confirm the claims set out in his Bill of Costs. The only question that needs to be determined here is whether Mr. Wilson’s Bill of Costs is reasonable or not.

Mr. Wilson claimed 34.2 hours of counsel time related to this motion. I am satisfied that the services and time spent on them were reasonably connected with the interim benefits motion with the following provisos. I find that the claim for .4 hours on each of November 22, 2009 and December 26, 2009 to review Mr. Anthonypillai’s file is duplicative absent further explanation. Mr. Wilson also claimed 2 hours to obtain instructions on commencing the motion with his clients which TD questioned. I am satisfied that with the necessary interpreters 2 hours is not unreasonable to consult with two applicants as to the nature of their case for requesting interim benefits, a claim which I note is not an easy one to establish. Further, Mr. Wilson claimed 2.15 hours total for “preparation for arbitration” claims which he conceded are more properly to be made at the end of the arbitration process. Finally, Mr. Wilson requests 1 hour for preparation for his Bill of Costs. I find that this would have had to be done at some point, but that it is not something which the Insurer should be required to fund, at least at the interim expense stage of the proceedings.

Therefore, I allow Mr. Wilson 30 hours of counsel fee at $150 per hour on this motion, for a total of $4,500.00, plus $585.00 HST.

Mr. Wilson requests payment of $12,713.03 for various itemized reports and documents. Those where the preparer of the report claimed more than the Schedule to Regulation 664, R.R.O. 1990, the Expense Regulation, have been reduced to the maximum allowable under our Tariff. I find that these reports were all prima facie relevant to an interim expense motion and allow them as claimed. However, I do caution that, in the event the parties need to proceed to a hearing on the merits in either of these claims and deal with expenses again, that it should be remembered that these reports have already been paid for by TD.

Mr. Wilson further claims $350.00 for photocopying, which, given the amount of paper in this file, I find to be reasonable. However, he also requests $20.50 for parking which I disallow.

Therefore, I allow $13,063.03 for disbursements, plus $1,698.19 for HST on them.

In total the Applicants are jointly entitled to $4,500.00 for counsel fees, $13,063.03 for disbursements and $2,283.19 for HST, for a total of $19,846.22.

April 19, 2011

Robert A. Kominar

Arbitrator

Date