Hoang v. Personal Insurance Company of Canada, 2012 ONFSCDRS 53

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 53

FSCO A10-000698

BETWEEN:

CHRISTOPHER HOANG (A MINOR BY HIS LITIGATION GUARDIAN, SAN TRIEU)

Applicant

and

Insurer

DECISION ON EXPENSES

Before: Arbitrator Denise Ashby

Heard: The Expense Hearing concluded on January 12, 2012

Appearances: Robert Ben for Mr. Hoang Todd J. McCarthy for Personal Insurance Company of Canada

Issues:

The Applicant, Christopher Hoang, was injured in a motor vehicle accident on August 6, 2004. In a decision dated September 29, 2011, I dealt with his claims for statutory accident benefits under the Schedule.¹ I made the following orders, while reserving on the issue of expenses:

Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), $13,300.00 in respect of tuition and related educational expenses of his admission to the Bond Academy for the school year 2008 to 2009.
Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), $30,193.90 for rehabilitation support worker services as set out in Treatment Plans dated December 11, 2009, May 11, 2010 and August 8, 2010.
Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), interest on the overdue payments in respect of the expenses of the Bond Academy and the rehabilitation support worker services in accordance with subsection 46(2) of the Schedule.
Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), a Special Award fixed at $28,000.00, inclusive of interest.

The issue in this further hearing is:

What is the quantum of expenses to which Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), is entitled?

Result:

Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), his expenses of the arbitration hearing in the amount of $50,525.60 inclusive of HST.

REASONS:

Christopher claims his expenses of $75,719.35 of which $32,775.00 are legal fees and the remaining $42,944.35 is attributed to disbursements. Christopher submits that he was successful on all issues dealt with at the arbitration. As well, his monetary success significantly exceeded the offer Personal made on the first day of hearing. The issues were complex as they related to Christopher’s subtle but significant neurological deficits caused by the accident. These deficits resulted in his need for private schooling and the assistance of a Rehabilitation Support Worker.

Personal submitted that the matter did not require the attendance of two lawyers. Further, Mr. MacDonald appeared on the preliminary issue which was determined in favour of Personal. Therefore, legal fees should be reduced by $4,995.00 reflecting 33.3 hours of Mr. MacDonald’s time.

Personal further submits that the following disbursements should not be allowed: courier and delivery charges, medical illustrations, the medical/legal impact statement video and fees of the experts that exceed the maximum amounts payable under the expense regulation. To the extent Christopher’s claim for disbursements is reduced so should the HST be reduced.

Legal Fees:

Christopher claims $32,775.00 in legal fees. He submits that both Mr. Ben and Mr. MacDonald are entitled to the hourly rate of $150.00 provided for in Rule 78.1 of the Dispute Resolution Practice Code (DRPC).

I agree that both Mr. Ben and Mr. MacDonald are senior litigation counsel whose expertise warrants the hourly rate of $150.00.

I also agree that this matter did not require the attendance of two senior counsel. However, Mr. MacDonald was the sole counsel attending the Pre-hearing on Christopher’s behalf. I award 3 hours or $450.00 for Mr. MacDonald’s preparation and attendance at the pre-hearing. Therefore legal fees will be reduced by $4,545.00. Personal shall pay Christopher his legal fees of $27,780.00.

Disbursements:

Christopher claims $42,944.35 in disbursements. The Expense Regulation sets out the disbursements that may be awarded.

Among the expenses allowed in the Expense Regulation are those incurred delivering items, relating to the arbitration, by courier. The fees charged for these services appear reasonable and are therefore allowed.

I agree that the medical illustrations and the medical/legal impact statement video are not payable disbursements pursuant to the Regulation and are therefore disallowed. As a consequence, Christopher’s claim for disbursements will be reduced by $17,485.00 for these costs.

The Regulation limits the fees of experts to $1,500.00. Christopher claims $1,890.00 in respect of Dr. McKinnon’s attendance. Therefore, this disbursement will be reduced by $390.00.

On the basis of the foregoing, Personal shall pay Christopher $20,128.85 plus HST of $2,616.75 or $22,745.60 in respect of his disbursements.

Conclusion:

On the basis of the foregoing, Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), his legal fees of $27,780.00 plus disbursements of $22,745.60, inclusive of HST, for a total of $50.525.60 inclusive of HST.

March 23, 2012

Denise Ashby Arbitrator

Date