M.T. v. RBC General Insurance Company, 2015 ONFSCDRS 63

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 63

FSCO A11-001877

BETWEEN:

M.T.

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

DECISION ON EXPENSES

Before: Sudabeh Mashkuri

Heard: By way of written submissions

Appearances: Daniel Roncari for M.T.

Aldo Picchetti for RBC General Insurance Company

Issues:

The Applicant, M.T., was injured in a motor vehicle accident on June 20, 2009. In a decision dated February 28, 2014, Arbitrator Richards dealt with her claims for statutory accident benefits under the Schedule.¹ Arbitrator Richards made the following orders, while reserving on the issue of expenses:

M.T. is entitled to an income replacement benefit at the rate of $267.26 per week from March 22, 2010 to date and ongoing.
M.T. is entitled to housekeeping and home maintenance benefits in the amount of $50.00 per week from August 1, 2009 to June 19, 2011.
M.T. is not entitled to an attendant care benefit from June 20, 2009 to June 19, 2011.
M.T. is not entitled to a Special Award.
M.T. is entitled to interest for the overdue payment of benefits.

The issue in this further hearing by way of written submissions is:

Is M.T. entitled to her expenses incurred in respect of this arbitration hearing?

Result:

M.T. is entitled to $15,360.72, in legal fees inclusive of HST and $ 12,025.07 in disbursements inclusive of HST totalling $27,385.79.

EVIDENCE AND ANALYSIS:

On February 28, 2014 Arbitrator Richards made an order with regard to the benefits claimed by the Applicant and encouraged the parties to resolve the issue of expenses by themselves. The parties were unable to resolve this issue and provided written submissions in summer of 2014. I received the file in December 2014.

Rule 75 of the Dispute Resolution Practice Code (the “Code”) deals with awards of expenses. Rule 75.1 provides that:

An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2. The items and amounts which may be awarded are in Rule 78 and the Schedule to the Expense Regulation found in Section F of the Code.

Rule 75.2 of the Code, which sets out the criteria to be considered in awarding expenses states the following:

The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

a) Each party’s degree of success in the outcome of the proceeding;

b) Any written offers to settle made in accordance with Rule 76;

c) Whether novel issues are raised in the proceeding;

d) The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings, and orders;

e) Whether any aspect of the proceeding was improper, vexatious or unnecessary;

f) Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule – Accidents on or after November 1,1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation; and

g) Whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule – Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44(9) of that regulation.

The only relevant criteria for award of expenses in this case are each participant’s degree of success and offer to settle. I find that the Applicant is entitled to expenses since she was successful with the majority of the benefits she claimed and the Applicant served on the Insurer an offer to settle which was not accepted by the Insurer. The treatment plans in the offer to settle were resolved prior to the commencement of the arbitration hearing. Arbitrator Richards’ decision is more than a partial success for the claimant. In fact the claimant was awarded the majority of what she claimed, except the attendant care benefit and special award.

The general approach with respect to fees is to take a pragmatic, broad-strokes approach with a view to fixing an amount that is reasonable. This takes into account the length of the proceeding and the complexity of the issues, and it may involve applying a ratio of pre-hearing preparation time in the range of 1:1 to 4:1. I find the ratio of 3:1 is an appropriate ratio for this particular arbitration hearing.

This was a five-day hearing and the Applicant and the Insurer have agreed on 25.5 hours of tribunal hearing time. In addition, I allow for another 76.5 hours of preparation time (at 3:1) because although there were no novel issues, there were multiple issues to be arbitrated and therefore a ratio of 3:1 is reasonable. I therefore find that the Applicant is entitled to recover 102 hours of her legal fees from the insurer with regard to Mr. Roncari. I also find that the 2013 fee structure of Legal Aid Ontario for year of call of 2009 of $111.37 per hour is an appropriate fee for Mr. Roncari, not $150.00 per hour, as requested by Mr. Roncari, or $87.26 per hour, as submitted by RBC General. Therefore the Applicant is entitled to $11,359.74 + $1,476.76 for HST totalling $12,836.50 for Mr. Roncari’s legal fees. I find the following to be reasonable for the remainder of the legal fees:

Student at law

($48.30 per hour)

34.6 hours

$1,671.18

Paralegal

($24.15 per hour)

9.8 hours

236.67

Junior Lawyer

($81.44 per hour)

3.5 hours

285.04

Senior Lawyer

($123.74 per hour)

.4 hour

40.94

Total of $2,233.83 plus $290.39 for HST

$2,524.22

Therefore I find the total legal fees to be awarded to the Applicant is in the amount of $15,360.72.

Further, although there is no need to examine line by line the expenses of the parties to arrive on a reasonable and legally sound amount for the expenses, I find some of the disbursement amounts claimed by the Applicant to be excessive and therefore I have not allowed all the disbursements listed by the Applicant. I find certain amounts, such as fees for experts and witnesses, and photocopying costs are excessive. I do not find the cost of photocopying in-house at .35 per copy to be reasonable. I find that .25 per copy to be more than adequate at $3,350.00 + $435.50 for HST the total of $3,785.50.

With regard to fees for experts I have considered the Schedule to the Expense Regulation² for fees. The Schedule provides for maximum amount of payment for attendance of an expert witness at $200 per hour of attendance, up to a maximum of $1,600.00 per day. The maximum amount of preparation for an arbitration for a witness is $500 according to the Schedule. The maximum amount payable to an expert for the preparation of a report is $1,500.00.

I find that Dr. Holdway's fees for appearing as a witness for one day at the hearing to be for 4 hours at $200 per hour for a total of $800.

The Kaplan Psychologists fees of $26,424.43 requested by the Applicant's counsel are not reasonable. The Schedule allows a maximum of $500 for preparation of an expert witness for an arbitration hearing and a fee of maximum of $1,600.00 for attendance at a hearing. There is no authority for allowing interest on amounts owing to an expert witness nor is there anything in the Schedule with regard to retainers for services of expert witnesses for an arbitration hearing. Therefore I find that the following amounts are to be awarded to the applicant with regard to fees to be paid to an expert witness as well as Dr. Holdway's fees:

For preparation of expert report from Kaplan Psychologists: $1,500.00;
For one day of testifying at the arbitration hearing for Dr. Levitt from Kapalan Psychologists: $1,600.00;
For preparation to testify at the hearing for Kaplan Psychologists : $500.00;
Dr. Holdway's attendance at the hearing: $800.00;
Totalling $4,400.00 plus $572.00 for HST = $4,972.00

I have allowed the other disbursements claimed by the Applicant. The Applicant requested a total of $36,702.49 for disbursements. After recalculating the amount awarded for photocopying, expert witnesses and witness attendance, the new total for the disbursements is $12,025.07 inclusive of HST.

In conclusion I award expenses to the Applicant in the amount of $27,385.79 ($15,361.57 for legal fees and $12,025.07 for disbursements) inclusive of HST.

March 26, 2015

Sudabeh Mashkuri

Arbitrator

Date