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

Neutral Citation: 2013 ONFSCDRS 8

FSCO A09-002515

BETWEEN:

JASWANT KAUR

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

Before: Arbitrator Anne Sone

Heard: By telephone conference call on November 21, 2012.

Appearances: Iqbal S. Bedi for Mrs. Kaur Ryan M. Naimark for Personal Insurance Company of Canada

Issues:

The Applicant, Jaswant Kaur, was injured in a motor vehicle accident on April 21, 2007. In a decision dated March 20, 2012, Arbitrator Ashby dealt with her claims for statutory accident benefits under the Schedule.¹ She made the following orders, while reserving on the issue of expenses:

Mrs. Kaur is not entitled to receive weekly caregiver benefits.
Mrs. Kaur is not entitled to receive a special award.
Mrs. Kaur is not entitled to interest for the overdue payment of benefits.

The issue in this further hearing is:

Is either party liable to pay the other party’s expenses in respect of the arbitration proceeding under subsection 282(11) of the Insurance Act, and if so, in what amount?

Result:

Mrs. Kaur is liable to pay the Personal Insurance Company of Canada for the expenses of the arbitration proceeding in the amount of $13,001.23, inclusive of fees, disbursements and applicable H.S.T.

Entitlement to Expenses:

Subsection 282 (11) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, gives me jurisdiction to award all or part of the expenses incurred in respect of an arbitration proceeding to an insured person or the insurer according to criteria prescribed by the regulations.

Subsection 12 (2) of the Expense Regulation provides a complete list of the relevant criteria that I may consider in deciding a party’s award of expenses. The only item before me at this expense hearing is under paragraph 1., which refers to each party’s degree of success in the outcome of the proceeding.

As indicated above, the Personal Insurance Company of Canada (Personal) was completely successful in defending Mrs. Kaur’s claims. Mrs. Kaur did not dispute the Personal’s entitlement to expenses under these circumstances. Accordingly, I find that the Personal is entitled to its reasonable expenses of this arbitration proceeding.

Amount of Expenses:

Fees:

Section 3 of the Schedule to the Expense Regulation sets out parameters for the legal fees that may be payable by the insured person or the insurer.

The Personal provided a Bill of Costs initially claiming total solicitors’ fees of $23,258.77 plus H.S.T of $3,023.64. This Bill of Costs pertains to work done by nine individuals at the law firm representing the Personal. Mrs. Kaur questioned the total number of hours the Personal’s legal representatives spent on the file.

The Personal’s Bill of Costs seeks reimbursement for a total of 204.7 hours of legal work. The majority of the hours were claimed by Mr. Ryan Naimark, legal counsel for the Personal, in this arbitration proceeding. The Bill of Costs also indicates that 18 hours of Mr. Naimark’s time were claimed for attendances at the Financial Services Commission of Ontario. These attendances pertained to a two-day hearing, a pre-hearing and various motions. Mrs. Kaur did not dispute the 18 hours claimed for these attendances, and I find that figure to be supportable.

Numerous cases at the Commission have accepted an up to 1:4 ratio of attendance time to preparation time as fair and reasonable. Although 1:4 is at the upper end of the range, I am prepared to find that it is justified in this case, as it had a number of issues that were out of the ordinary.² In addition, Mrs. Kaur did not object to my applying this ratio. Accordingly, I allow the Personal to claim 18 hours of Mr. Naimark’s time for attendances at the Commission and 72 hours for preparation. This comes to a total of 90 hours.

Mr. Naimark was called to the Ontario Bar in 1998. His Legal Aid Tariff rate, effective April 1, 2011, is $112.24 per hour. Ninety hours at the applicable rate equals $10,101.60. In addition, H.S.T. at 13% comes to $1,313.21. Accordingly, I find that the Personal is entitled to total legal fees of $11,414.81, inclusive of H.S.T.

Disbursements:

Sections 4, 5 and 6 of the Expense Regulation set out parameters for the disbursements that may be payable by the insured person or the insurer.

In its original Bill of Costs, the Personal claimed the following disbursements:

Photocopies $ 243.25

Telephone Expense 4.08

Courier Costs 580.52

Conduct Monies 55.25

Court reporting (at the arbitration) 220.00

External printing costs 10.80

Process server filing fees 167.00

Local travel expense 123.01

File Statement of Defence and Jury Notice 248.00

Transaction levy: Statement of Defence 50.00

Total disbursements $ 1,840.60

During the course of the expense hearing, the Personal withdrew its claim for $248 for filing the Statement of Defence and Jury Notice, and for $50 for the transaction levy for the Statement of Defence. Mrs. Kaur did not object to the remaining disbursements, and I find the total of $1,403.91 to be reasonable. The 13% of H.S.T. on $1,403.91 is $182.51. Accordingly, the Personal is entitled to disbursements of $1,586.42, inclusive of H.S.T.

Conclusion:

The Personal is entitled to $13,001.23, for the expenses of the arbitration proceeding, inclusive of fees, disbursements and applicable H.S.T.

January 14, 2013

Anne Sone Arbitrator

Date