Financial Services Commission of Ontario
Neutral Citation: 2015 ONFSCDRS 208 FSCO A13-011846
BETWEEN:
GURBAKHSH SINGH Applicant
and
CHIEFTAIN INSURANCE COMPANY Insurer
DECISION ON A MOTION
Before: Arbitrator Benjamin Drory
Heard: By teleconference on September 10, 2015 and written submissions due September 16, 2015
Appearances: Mr. Gurbakhsh Singh did not participate Mr. Franklyn Taylor did not participate Ms. Lisa Armstrong participated for Chieftain Insurance Company
Issues:
The Applicant, Mr. Gurbakhsh Singh, was injured in a motor vehicle accident on April 30, 2012 and sought accident benefits from Chieftain Insurance Company (“Chieftain”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Singh, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this Motion are:
- Should Mr. Singh’s Application for Arbitration be dismissed?
- Should Chieftain be entitled to expenses for the proceedings, and if so, in what amount?
Result:
- Mr. Singh’s Application for Arbitration is dismissed.
- Mr. Singh is ordered to pay Chieftain $1,000.00 for its expenses in this matter.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion in this case was held on January 26, 2015, at which Mr. Singh failed to appear. At the time, a Hearing in the matter was set for November 9-13, 2015, jointly with the companion file, A13-011514 (Dhanju and Chieftain).
Following the Pre-Hearing discussion, Chieftain made multiple attempts to schedule a resumption of the Pre-Hearing, with no response from Mr. Singh’s representative, Mr. Taylor. Chieftain had not received any production from the Applicant, and had not even received an authorization from Mr. Singh allowing them to deal with Mr. Taylor. My own records show correspondence respecting setting a resumption on each of May 21, June 1, July 31, August 2, August 6, August 10, and August 15, 2015. I do not doubt there were additional correspondence attempts directly between Ms. Armstrong and Mr. Taylor that did not involve me. Mr. Taylor did not respond to any of ADR Chambers’ correspondence between May and August.
On August 17, 2015, I sent a letter to Mr. Taylor and also to Mr. Singh at his last known address, advising of the missed Pre-Hearing discussion. The letter provided Mr. Singh with an Attendance Notice, setting a teleconference on September 10, 2015, at 2:00 p.m., to consider Chieftain’s motion that Mr. Singh’s Application for Arbitration be dismissed. The letter also advised that in the event Mr. Singh attended, with or without representation, the Motion would not proceed and the appointment would be converted into a resumption of the Pre-Hearing discussion. However, if Mr. Singh did not attend, the Motion may proceed in his absence, and his Application for Arbitration may be dismissed and Chieftain’s expenses of the Arbitration may be awarded against him.
The Dismissal
For the reasons that follow, Mr. Singh’s Application for Arbitration is dismissed.
At the scheduled time of the Motion (September 10, 2015 at 2:00 p.m.), Mr. Singh did not participate. I was also unable to reach his representative, Mr. Taylor, or anybody on behalf of his office, despite attempts to do so. Mr. Singh did not participate in any of the Arbitration proceedings.
I am satisfied that Mr. Singh was given notice of all of the proceedings related to his Arbitration at his last known address.
Mr. Singh bears the onus of proving entitlement to the claimed benefits, and he did not participate in either the Pre-Hearing or the Motion that was set up to consider dismissal of the claim. This Arbitration is dismissed without a Hearing, pursuant to Rules 68.1 and 68.2 of the Dispute Resolution Practice Code, on the basis that it is frivolous, vexatious, and/or commenced in bad faith.
EXPENSES:
By submission, dated September 10, 2015, Chieftain requested expenses in this matter based on the following work completed and expenses incurred:
- Lawyer - Lisa Armstrong (2003 call) - 11.1 hours
- Lawyer - Kathleen O’Hara (2009 call) - 7 hours
- Student at Law - Tim Law - 4 hours
- Law Clerk - 16.3 hours
- Disbursements: $23.02 + HST of $2.99
- Filing fee: $3,000.00
In total, this amounts to a request for over $6,000.00, based on my calculations which follow. Mr. Taylor did not respond to this submission, despite specifically being provided nearly a week to do so.
The expenses awardable are constrained by the Dispute Resolution Practice Code. Section 4 of the Expense Regulation to the Dispute Resolution Practice Code specifically allows for the repayment of disbursements related to the Arbitration proceeding, such as telephone, photocopying, and courier expenses. Accordingly, I find the disbursements requested ($23.02 + $2.99 HST) reasonable. However, there is no provision in the Expense Regulation for the repayment of an Insurer’s fee to respond to an Application for Arbitration – although there is provision in the Expense Regulation for the equivalent cost that an Applicant incurs. Accordingly, I am not prepared to grant reimbursement of Chieftain’s $3,000.00 filing fee.
Regarding the hours worked, Rule 75 of the Dispute Resolution Practice Code states that the items and amounts which may be awarded are found in Rule 78 and the Schedule to the Expense Regulation. Rule 78 then states that the maximum amount that may be awarded to an Insurer for legal fees is an amount calculated using the hourly rates established under the Legal Aid Services Act, 1998 for professional services in civil matters before the Ontario Superior Court of Justice.
Under Schedule 2 to the General Regulation (O.Reg. 107/99) under that Act, the relevant maximum hourly rates for counsel are as follows:
- $94.27 per hour for services performed between April 2012-March 2013
- $98.99 per hour for services performed between April 2013-March 2014
- $103.94 per hour for services performed between April 2014-March 2015
- $109.13 per hour for services performed since April 2015
Item 24.2 of the Table to Schedule 2 authorizes a 25% increase for a lawyer certifying that he/she has the equivalent of 10 years of practice in litigation, including at least 4 years of practice in civil litigation. Item 24.1 authorizes a 12.5% increase for a lawyer certifying that he/she has the equivalent of 4 years of practice in civil litigation.
Schedule 3 to the General Regulation authorizes the following maximum hourly rates for law clerks:
- $27.96 per hour for services performed between April 2012-March 2013
- $29.35 per hour for services performed between April 2013-March 2014
- $30.82 per hour for services performed between April 2014-March 2015
- $32.36 per hour for services performed since April 2015
Schedule 3 to the General Regulation also sets out the following maximum rates awardable to articling students:
- $55.91/hour for services performed between April 2012-March 2013
- $58.71/hour for services performed between April 2013-March 2014
- $61.64/hour for services performed between April 2014-March 2015
- $64.73/hour for services performed since April 2015
It should also be kept in mind that these rates are maximums, and are not intended to be applied automatically. So the maximums Chieftain may be entitled to for legal hours worked based on the General Regulation are approximately as follows:
| Lawyer | Hours | Hourly Rate | Total |
|---|---|---|---|
| Lisa Armstrong | 11.1 | $129.92 (1.25*$103.94) |
$1,442.11 |
| Kathleen O’Hara | 7 | $116.93 (1.125*$103.94) |
$818.51 |
| Tim Law | 4 | $61.64 | $246.56 |
| Law Clerks | 16.3 | $31.82 | $518.67 |
| Total | $3,025.85 |
As noted, these are the maximums awardable, and are not automatic entitlements. At the end of day, the Hearing did not proceed, which prevented the legal expenditures from being higher than they were. It was also very difficult to track down the Applicant’s Counsel throughout the proceedings. The Applicant remained represented throughout, and all communication was also directed at his counsel. I am only prepared to award a fraction of the expenses incurred, in light of the fact that it is an individual who must incur them. This case was also less complex than the companion case.
I award Chieftain a total of $1,000.00 for its expenses in this matter – which includes the disbursements and taxes thereon I determined reasonable.
October 19, 2015
Benjamin Drory Arbitrator
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:
- This Application for Arbitration is dismissed
- Mr. Singh is ordered to pay Chieftain $1,000.00 for its expenses in this matter.
October 19, 2015
Benjamin Drory Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.