Brunarajan Balendra v. Security National Insurance Co. / Monnex Insurance Mgmt. Inc., 2012 ONFSCDRS 95

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 95

FSCO A08-002455

BETWEEN:

BRUNARAJAN BALENDRA

Applicant

and

SECURITY NATIONAL INSURANCE CO./ MONNEX INSURANCE MGMT. INC.

Insurer

DECISION ON EXPENSES

Before: Fred Sampliner

Heard: Insurer’s written submissions October 31, 2011; Applicant’s March 2, 2012

Appearances: Marko Djukic for Mr. Balendra

Amanda Lennox for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

After I made a preliminary decision to allow Mr. Brunarajan Balendra to continue his claims for statutory accident benefits under the Schedule¹, the Director’s Delegate decided he was excluded from the “SABS” under section 59 of the Schedule, and properly belonged under the Workplace Safety and Insurance Act.

Thereafter, Security National requested reimbursement for its expenses of the arbitration process. The Director’s Delegate requested that I deal with arbitration expenses and that he decide those expenses for the appeal.

The issue is:

Whether Security National is entitled to its expenses of the arbitration process. If the answer is yes, what is the amount?

Result:

Security National is entitled to $1,246.14 for its lawyer and legal assistant expenses of the arbitration process under section 282(11) of the Insurance Act. Disbursements of the arbitration are not included in this sum and are deferred to the Director’s Delegate.

EVIDENCE AND ANALYSIS:

The parties’ relative degree of success in this proceeding is unquestionably a relevant criteria to Security National’s expense claim.² The Company maintains it was completely successful in the final outcome because it won the appeal, which resulted in the complete dismissal of Mr. Balendra’s claims. Mr. Balendra urges me to find that the results are mixed, in that he won at the arbitration and subsequently lost on appeal.

First, I agree with the parties that an arbitrator should view the results of both preliminary issue proceedings, arbitration through appeal, as one process rather than as separate proceedings. In doing so, I cannot agree with Mr. Balendra’s submission that the results are mixed. He lost all his right to claim accident benefits after Security National’s successful appeal, and therefore enjoyed only a time-limited relatively small degree of success in comparison to his ultimate complete loss in the process. Mr. Balendra’s argument that the parties had equal success has no merit. I find that Security National had by far the greatest degree of success on the preliminary issue.

Security National sees these proceedings as dealing with a novel interpretative issue on workers’ compensation entitlement. The Company’s position is contradicted by the Director’s Delegate opinion that the law and process concerning entitlement between the two statutory schemes is quite clear, and he decided the matter on the established law. My arbitration decision was primarily fact-driven, and Security National does not point out any unusual facts distinguishing Mr. Balendra’s situation from others in established precedent. Thus, I reject Security National’s contention that this was a novel issue. However, based on its much greater degree of ultimate success on the issue, I find that Security National is entitled to its expenses.

Security National lists a total of $3,270.58 for legal fees of its lawyer and law clerk at the appropriate tariff rate. Service times are bulked together under categories without dates or individual times.

Arbitrators do not generally engage in line-by-line analysis or approve of bulk billing practices. Instead, arbitrators usually apply a ratio of between 1 and 4 to the hearing time in order to arrive at an estimated preparation time. Security National’s 1.2 hours for the prehearing and 2.8 hours for the preliminary issue hearing do not offend my sense of time for those events, and I accept 4 hours for the total appearance time. I find it appropriate to use a mid-range 3 ratio as a multiplier to the 4 prehearing and hearing hours, and thus allow 12 hours for Security National’s preparation for the preliminary issue hearing.

The ratio of the lawyer’s time to law clerk hours for preparation is approximately 57/43 percent, which equates with the law clerk receiving 5.16 hours and the lawyer 6.84 hours. I add the lawyer’s 4 hour time credit for the prehearing/hearing and multiply it times the $87.26 hourly tariff rate ($945.90), and add the law clerk’s $124.61. (5.16 x $24.15/hr. tariff rate). I find that the total allowable amount for Security National’s law clerk and lawyer for the preliminary issue in arbitration is $1,246.14.

Security National’s bill of costs does not separate the prehearing/preliminary issue/appeal disbursements. I defer on this issue, and leave it to Security to authenticate those disbursements before the Director’s Delegate.

June 18, 2012

Fred Sampliner

Arbitrator

Date