Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2011 ONFSCDRS 46
FSCO P09-00015V
BETWEEN:
PERSONAL INSURANCE COMPANY OF CANADA
Insurer/Applicant
and
BAVANI THEVARANJAN
Insured/Respondent
REASONS FOR DECISION
*Minor errors on pages 2, 6 and 7 and Order corrected on June 22, 2011 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.
Before: Fred Sampliner
Heard: Written submissions received on April 29, 2011 and May 2, 2011
Appearances: Michael Chadwick for Personal Insurance Company of Canada
David S. Wilson for Ms. Thevaranjan
Issues:
The parties made written submissions further to my April 19, 2011 directive concerning Personal Insurance Company of Canada’s (“Personal”) request to withdraw its Application for revocation/variation of the June 26, 2007 order to pay Ms. Bavani Thevaranjan income replacment benefits under the Schedule.1 I indicated my preference to allow Personal to withdraw under Rule 70 of the Dispute Resolution Practice Code (the “Code”) once it provides the Tribunal with a statement from its expert supporting the reason for withdrawal. Ms. Thevaranjan initially sought production of two experts’ clinical notes and records, but now withdraws this issue because they are not relevant in light of the conclusion of evidence. The amount of Ms. Thevaranjan’s expenses remains in dispute.
The issues in this hearing are:
Should Personal’s Application for Variation/Revocation be dismissed or withdrawn?
What terms are attached to the termination of this Application?
What is the amount of Ms. Thevaranjan’s expenses Personal must pay?
Result:
Personal’s Application is withdrawn under Rule 70 of the Code.
Personal is precluded from filing further Applications respecting the June 26, 2007 Order until it complies with the April 19, 2011 Order to substantiate Dr. Kelly changed his opinion during the evidence.
Ms. Thevaranjan is entitled to $18,204.83 for her expenses of this arbitration under section 282(11) of the Insurance Act, together with applicable taxes.
EVIDENCE AND ANALYSIS:
Ms. Thevaranjan has not provided me with any case law or pertinent facts to support her contention the Application should be dismissed either on its merits or under Rule 68 of the Code. I allow Personal to withdraw its Application under Rule 70 of the Code on the basis of my reasoning in the April 19, 2011 decision, subject to one term.
Personal concedes it is unable to substantiate its stated reason to withdraw this Application. In my view, terminating a legal action in the midst of hearing evidence must have a valid reason. Otherwise, the opposing party can be exposed to the pressure of a legal proceeding as well as the considerable expense of carrying the matter forward without consequence beyond costs alone.
In my view, it would be an abuse of this process and bring the administration of justice at this Tribunal into disrepute if Personal withdrew this Application without a founded basis. I find that Personal has failed to provide a valid factual basis for withdrawing its Application.
Under this circumstance, I am unwilling to alter my direction that Personal is required to submit evidence supporting its submission that Dr. Kelly changed his opinion. In the result, I find that Personal is precluded from filing further Applications for Variation or Revocation respecting the June 26, 2007 Order unless it provides evidence satisfying me that it has a valid factual reason for seeking withdrawal.
EXPENSES:
Ms. Thevaranjan’s lawyer sets out 85.10 hours at $150 per hour plus 2 hours for an unidentified person with initials “MK” at $115 per hour in the costs bill. Personal disputes the $14,684.35 claim (including HST) for lawyer time on the basis that the bulk correspondence billing (14.4 hours) is not verified and the lawyer preparatory time is otherwise excessive under the circumstances where the hearing concluded earlier than anticipated. Personal argues that $7,500 is reasonable for Ms. Thevaranjan’s lawyer.
Arbitrators do not often engage in line-by-line analysis of costs bills and I will not do so in this matter. The usual method applies a multiple to the hearing hours to arrive at a reasonable estimate for lawyer/paralegal preparation time. The combined hearing and preparation times are multiplied by the applicable hourly rate. There is no question that Ms. Thevaranjan’s lawyer is entitled to the maximum $150 per hour rate at this Tribunal, and I apply the usual multiple method considering the following variant.
The variant here is that Ms. Thevaranjan’s lawyer was required to do advance preparation for a hearing that was scheduled an additional four days beyond the April 26 and July 8, 2010 attendances. The usual multiple to arrive at preparation time ranges between 1 and 4. Normally I would use a mid-range multiple, but I find it is reasonable to apply a multiple of 4 because the lawyer’s bill indicates he did some preparation for cross-examination of Personal’s experts and presentation of Ms. Thevaranjan’s witnesses before the commencement of the hearing and subsequent termination of the evidentiary process.
I discount the lawyer’s hearing time to reflect that commuting to this Tribunal is not normally compensable. Ms. Thevaranjan’s lawyer includes travel time in his 9 hours and 4 hours bill for the two hearing appearances in Toronto where her lawyer resides. Therefore, I reduce her lawyer’s time by one hour for each of the two days to account for commute travel, then multiply 11 hours by the 4 multiple, and by $150 per hour. A total of $6,600 for preparation time is allowed.
The addition of the 11 hours for hearing attendance at $150 per hour equals $1,650.00. The agreed $225 amount (1.5 hours @ $150/hour) for Ms. Thevaranjan’s post-hearing costs submissions is added to her total $8,250.00 for preparation and hearing time. The result is my finding that Ms. Thevaranjan is entitled to $8,475.00 for her lawyer in this arbitration, plus applicable tax.
Personal also objects to Ms. Thevaranjan’s disbursements.
Personal contends Dr. Rickey Miller’s (psychologist) September 2, 2008 report is not helpful and should be disallowed. Dr. Miller’s report is a brief update respecting the short period between March 2008 and late April 2008, but it is generated nearly a year before the filing of this Application. I deny Dr. Miller’s $225.00 bill for reason that I find it was not generated for this Application.
Dr. Miller interviewed Ms. Thevaranjan and conducted psychological testing between February and April 2009 before preparing her May 4, 2009 report, and Personal does not contest the $1,500.00 charge. The Company disputes her $1,350.00 bill for her report of May 21, 2009, two weeks later.
Dr. Miller’s May 21, 2009 report spends 9 pages in a detailed critique of Personal’s psychological expert, Dr. Paul Kelly. Personal maintains she should have included her analysis in her earlier May 4, 2009 report.
While I agree with Personal that it was inefficient to split the reports, it is undisputed Dr. Miller did not have possession of Dr. Kelly’s August 11, 2008 report at the time she interviewed and tested Ms. Thevaranjan on May 4, 2009. Based on the time proximity between the two reports, I accept Dr. Miller could easily have combined the two, and reduce the $1,350 bill to $750.00 to account for this inefficiency.
Personal’s objection to Dr. Joseph Wong’s (physiatrist) two page addendum is based on its brevity and lack of depth. In two lines, Dr. Wong agrees with another expert’s conclusion without any reasoning, and I agree his brief statement has no usefulness. I deny the entire $500 Ms. Thevaranjan requests for Dr. Wong’s March 23, 2009 report.
Dr. Wong interviewed Ms. Thevaranjan for his January 13, 2010 report, concluding she is incapable of working. He reviewed additional documents and conducted an examination. His conclusion that Ms. Thevaranjan cannot work goes further than his previous opinion of March 12, 2009 that her career options were limited, although he provides very limited reasoning for his conclusion.
Personal submits Dr. Wong’s report is worth $500.00, instead of the $1,400.00 billed. I agree and allow $500.00 for the January 13, 2010 report, based on the fact it is not comprehensive and offers little reasoning.
Dr. R.I. Asirwatham is Ms. Thevaranjan’s family physician, and his single page report of January 17, 2010 confirms his previous opinion that her condition was basically unchanged. I accept Personal’s submission that this evidence has limited value, and do not accept the $500.00 charge. I substitute $250 as a fair value for Dr. Asirwatham’s January 17, 2010 report.
Mr. Atila Balaban is an exercise physiologist, whose April 14, 2009 and January 4, 2010 reports are disputed. Mr. Balaban’s 4 previous reports dating from 2005 are filed, but not claimed as expenses. Both controversial reports are claimed at $1,200 each.
Mr. Balaban’s April 2009 report is a 2 page critique of another expert. I completely agree with Ms. Thevaranjan that $100 is reasonable, and allow this amount.
Personal contends Mr. Balaban’s examination on November 5, 2009 and subsequent report of January 4, 2010 were unnecessary because his conclusions are almost identical to his examination and report of April 14, 2009, less than a year earlier. Ms. Thevaranjan does not disagree there were no new health issues in this period.
Mr. Balaban’s January 4, 2010 report follows Personal’s February 2009 filing of this Application seeking termination of her income benefit. Clearly, Ms. Thevaranjan’s expert was responding to Personal’s evidence on this Application. In the context of this proceeding, I am loath to deny her an expense to update her expert’s opinion on her function.
Moreover, in the January 4, 2010 report Mr. Balaban describes a comprehensive interview, functional testing and analysis of the data on reaching his conclusion. Personal does not explain why Mr. Balaban’s reinforcement of his prior conclusion based on his current objective tests completely lacks value. I reject Personal’s position and grant Ms. Thevaranjan $1,200 for Mr. Balaban’s January 4, 2010 report.
Ms. Thevaranjan has charged $1,340.88 for photocopying and binding charges for briefs. The amount is not itemized. However, if $1,000 represents photocopying at 25 cents per page, it would mean Ms. Thevaranjan used 4000 copies in this proceeding.
I estimate that Ms. Thevaranjan’s two briefs total 600 pages. Duplicating this material for Personal, this Tribunal and portions for her experts’ review at least triple that number with correspondence copying thrown in. I allow $500 for photocopying expense plus $75.00 binding.
Ms. Thevaranjan concedes that the HST tax she included in her bill of costs does not apply because the new tax law was not in effect at the time most of her expenses were incurred. I do not have the bills or agreed dates the expenses became due and owing. I would be grateful if the parties can resolve the minor question on their own.
The amounts I allow Ms. Thevaranjan for contested ($3,375.00) and uncontested disbursements ($6,354.83) together with $8,475.00 for her lawyer yield $18,204.83. I find that Ms. Thevaranjan is entitled to $18,204.83 plus applicable taxes for her expenses of this Application under section 282(11) of the Insurance Act.
May 20, 2011
Fred Sampliner Date
Arbitrator
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2011 ONFSCDRS 46
FSCO P09-000150056
BETWEEN:
BAVANI THEVARANJAN
Applicant
and
PERSONAL INSURANCE 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:
Personal’s Application for Variation/Revocation of the June 26, 2007 Order is withdrawn under Rule 70 of the Dispute Resolution Practice Code.
Personal shall not file further Applications respecting the June 26, 2007 Order until it complies with the April 19, 2011 Order to substantiate that Dr. Kelly changed his opinion during the evidence in the matter.
Personal shall pay $18,204.83 plus applicable taxes for Ms. Thevaranjan’s expenses of this Application under section 282(11) of the Insurance Act.
May 20, 2011
Fred Sampliner Date
Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.