Financial Services Commission des
Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 148
FSCO A09-002809
BETWEEN:
ANNE ARULAPPU
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before: Arbitrator Jeffrey Rogers
Heard: By oral argument on August 28, 2013, at the offices of the Financial Services Commission of Ontario in Toronto, and written submissions completed on September 24, 2013
Appearances: Mr. David S. Wilson, solicitor for Ms. Arulappu Ms. Janet S. Young, solicitor for TD Home and Auto Insurance Company
Issues:
The Applicant, Anne Arulappu (Ms. Arulappu), was injured in a motor vehicle accident on August 10, 2008. She applied for arbitration of her claims for further statutory accident benefits under the Schedule.1 On the eve of the arbitration hearing, the parties agreed to settle all of Ms. Arulappu’s claims on terms that TD Home would pay her expenses of the arbitration, to be agreed or assessed. The parties could not agree and therefore requested a hearing.
The issue in this further hearing is:
- What is the amount of expenses to which Ms. Arulappu is entitled in respect of this arbitration?
Result:
- Ms. Arulappu is entitled to fees and disbursements of $18,385.66.
BACKGROUND:
The issues in the arbitration were: income replacement benefits (including post-104), housekeeping and attendant care benefits to the 2-year mark, several medical benefits, several examinations or assessments, and a special award. The parties agreed to settle all of those claims when they attended for the hearing. TD Home agreed to pay Ms. Arulappu’s expenses of the arbitration. Although this arbitration was fraught with procedural skirmishing and interlocutory applications, the expenses of the interlocutory proceedings have already been adjudicated or settled. TD Home has paid expenses it was ordered to pay with regard to a motion for interim benefits and the parties settled Ms. Arulappu’s claim for expenses of a motion TD brought for further medical examinations.
Ms. Arulappu claims an additional $9,393.75 for legal fees (62.625 hours @ $150 per hour), and $8,841.81 for disbursements, plus HST.
ANALYSIS:
Fees
TD Home submits that the claim for fees is excessive. I accept that submission. The relevant steps in this arbitration are preparation for and attendance at a pre-hearing discussion, preparation for and participation in a settlement discussion, preparation for the hearing, and attending for one day on which the matter was settled. These steps should not reasonably consume 1.5 x 40-hour work weeks, including 21.4 hours dedicated to correspondence. Given the issues and the steps involved, I find 50 hours to be reasonable. I find the claimed rate of $150 per hour to be appropriate, given Mr. Wilson’s experience and expertise.
I reject TD Home’s further submissions that the expenses should be reduced to reflect partial success because it did not agree to pay everything Ms. Arulappu claimed in the arbitration.
TD Home agreed to pay the expenses of the arbitration. In my view, the submission that Ms. Arulappu’s degree of success should be considered is a collateral attack on that agreement.
Ms. Arulappu is therefore entitled to $7,500 for legal fees ($150 x 50), plus HST of $975.
Disbursements
I find the claimed disbursements to be reasonable and recoverable, except for the amount claimed for parking and mileage. Since the arbitration was scheduled in the municipality in which counsel maintains his office, the Expense Regulation does not permit recovery of mileage. The Bill does not contain a separate charge for parking. I therefore deduct $59.75.
I find no evidence to support TD Home’s claim that there is duplication in the claimed disbursements. Ms. Arulappu is therefore entitled to $8,782 for disbursements, plus HST of $1,128.66.
Expenses of this Hearing
Based on their mixed success, and there being no evidence of a proposed compromise that could have made this further hearing unnecessary, I find that that the parties should bear their own expenses of this hearing.
SUMMARY
Ms. Arulappu is entitled to $7,500 for legal fees ($150 x 50), plus HST of $975.
Ms. Arulappu is entitled to $8,782 for disbursements, plus HST of $1,128.66.
Ms. Arulappu is therefore entitled to fees and disbursements of $18,385.66, inclusive of HST.
November 19, 2013
Jeffrey Rogers Arbitrator
Date
Financial Services Commission des
Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 148
FSCO A09-002809
BETWEEN:
ANNE ARULAPPU
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- State Farm shall pay Ms. Arulappu her expenses of the arbitration in the amount of $18,385.66.
November 19, 2013
Jeffrey Rogers Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.