Financial Services Commission of Ontario
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 46
FSCO A09-002594
BETWEEN:
JEYAPALAN SUBRAMANIAM
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Before: Arbitrator Jeffrey Rogers
Heard: December 14, 2012, by telephone conference call, and written submissions, completed on January 21, 2013.
Appearances: Mr. David S. Wilson, solicitor for Mr. Subramaniam Mr. J. Claude Blouin, solicitor for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Jeyapalan Subramaniam, was injured in a motor vehicle accident on January 22, 2008. I dealt with his claims for statutory accident benefits under the Schedule1 in a decision dated July 13, 2012. He was successful on some claims and unsuccessful on others. I reserved my decision on expenses of the hearing. The parties were unable to resolve this issue on their own and requested this further hearing.
The issues are:
What is the amount of expenses to which Mr. Subramaniam is entitled in respect of the arbitration hearing?
Is Mr. Subramaniam entitled to expenses of this further hearing, and if he is, in what amount?
Result:
- Mr. Subramaniam is entitled to expenses in the amount of $34,618.63 for the arbitration hearing, and a further $466.12 for the hearing on expenses. (Total of $35,084.75)
EVIDENCE AND ANALYSIS:
The Expense Regulation2 requires an arbitrator to consider 7 criteria in awarding all or part of the expenses incurred in respect of an arbitration. The only one relevant to this decision is: “Each party’s degree of success in the outcome of the proceeding.”
Mr. Subramaniam claims $45,609.27 for fees, disbursements, and HST.3 Wawanesa concedes that Mr. Subramaniam is entitled to some expenses of the arbitration hearing because he had partial success. The dispute is about the amount. Wawanesa’s position is that Mr. Subramaniam’s recovery should be reduced to reflect his partial success.
Wawanesa does not question the time claimed by counsel, except for time attributed to correspondence. It submits that time for correspondence should be considered part of the overall preparation time, not a separate item. Wawanesa makes two further submissions:
First, the sum of $212 claimed as witness fees for Pearl Marks, John Lepore, Dr. Salituro and Dr. A. Syed should be disallowed, because they did not attend at the hearing;
Second, the amount that could be awarded should be reduced by half, because Mr. Subramaniam was only partly successful
I will first address the question of deductions. After that, I will decide whether the amount awarded should be reduced to reflect partial success.
Deductions
I reject Wawanesa’s submission that I should disallow Mr. Subramaniam’s claimed disbursements for witness fees. I find it reasonable and prudent for Mr. Subramaniam to have summoned the witnesses. I reject Wawanesa’s submission that the summonses reflect overzealous preparation.
Pearl Marks, John Lepore, Dr. Salituro and Dr. Syed are experts who assessed Mr. Subramaniam on Wawanesa’s behalf. Wawanesa relied on the opinions contained in their reports. Mr. Subramaniam served them with summonses to appear for cross-examination on their reports, but decided not to call them as witnesses. Each was paid witness fees of $53.00. As the hearing unfolded, Mr. Subramaniam decided that he did not need to cross-examine these witnesses. They did not attend. They have not returned the witness fees.
The opinions of these experts were important to Wawanesa’s case. From Mr. Subramaniam’s perspective, it was prudent to have the option of cross-examining them. I accept his submission that he should not be penalized for his decision not to do so, in the interest of expediting the hearing.
Mr. Subramaniam concedes that correspondence should not be considered a separate item, but part of the overall time for preparation for the hearing. He submits that, with this approach, no deduction is warranted because the amount of time claimed, including correspondence, falls within an acceptable ratio of preparation to hearing time. I agree.
The overriding consideration in fixing arbitration expenses is reasonableness. Arbitrators make a global assessment of reasonable expenses. Assessing preparation time on a ratio with hearing attendance provides a framework for estimating reasonable preparation time. The applicable ratio is not static. A reasonable ratio is informed by the particulars of the case, including the amount of the claim, and the complexity of the issues.
This hearing took place over the course of 10 days. Counsel docketed a total of 68.15 hrs. for attendances on the days of the hearing. The bill contains a further 122 docketed hrs., including correspondence. This works out to a ratio of 1.79 to 1. I find that ratio to be reasonable, given the issues in this case, even when one takes into account that the hearing time is somewhat inflated by inclusion of travel and preparation time.
I conclude that the claim of $45,609.27 reasonably reflects the maximum recoverable expenses of the arbitration hearing.
Partial success
Arbitrators have noted that the Expense Regulation requires consideration of each party’s degree of success, but it gives no guidance on applying that consideration. In some cases, partially successful applicants have been awarded all of their expenses. In others, they have been awarded a percentage of their expenses. And in some cases, the parties have been ordered to bear their own expenses.
It may be reasonable to award an applicant all of his or her expenses when there is partial success in a single issue hearing. The same logic might apply when all the issues are