Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 222 FSCO A14-010070
BETWEEN:
ANGEL GANAL Applicant
and
COSECO INSURANCE CO./HB GROUP/DIRECT PROTECT Insurer
DECISION ON EXPENSES
*Minor error on Order corrected on September 1, 2017 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.
Before: Rosemary Muzzi Heard: All written submissions received by June 30, 2017 Appearances: Loreto Scarola for Mr. Ganal Daniel Himelfarb for Coseco Insurance Co./HB Group/Direct Protect
Issues:
The Applicant, Angel Ganal, was injured in a motor vehicle accident on October 2, 2013. In a decision dated May 12, 2017, I dealt with his claims for statutory accident benefits under the Schedule.1 I made orders dismissing his claims for two medical treatment plans and the cost of one assessment. As a result I found he was not entitled to interest or a special award. I awarded reasonable expenses to Coseco and invited the parties to resolve the specific quantum issue. They were unable to do so and I allowed them to deliver written submissions with respect to the issue.
The issue in this further hearing is:
- What is the quantum of expenses to which Coseco is entitled?
Result:
- Coseco is entitled to the fixed sum of $6,250 for fees and $2,929.95 for its disbursements. Amounts are inclusive of HST.
EVIDENCE AND ANALYSIS:
The only issue for my determination was the quantum of expenses to award Coseco. I had already found Coseco entitled to its expenses given its success at arbitration.
I have considered the other criteria outlined in the Expense Regulation that might impact on the amount of expenses to award in this case. I find that Coseco’s written offer to settle all issues in dispute and all claims on a full and final basis made a year before the arbitration date is also relevant for my consideration.
However, I find Coseco’s bill of costs excessive and decline to order the full amount requested for the following reasons.
The truth is that this arbitration was a typical, straightforward case akin to many others argued at the Commission involving the reasonableness and necessity of treatment plans claimed by an Applicant. The applicability of the Minor Injury Guideline to the Applicant is an evidentiary issue that can exploit the medical and other evidence necessarily presented to prove the treatment plans. Also, as in many cases before the Commission, the credibility of the evidence, including that of the Applicant, is tested.
In this context, it is my view that the arbitration hearing was unnecessarily long and both parties share responsibility for that outcome. Basic arbitration proceedings, such as this case, should be completed in no more than two days.
Moreover, I am vexed by some of the entries listed in Coseco’s bill of costs. Generally, the entries lack specificity and in some cases they are not fully explained and therefore I do not understand them.
Initially, I am disturbed by the absence of dates in the fees schedules. It is not clear to me when the claimed work was completed and therefore I am unable to judge the reasonableness of some of the fee claims. Furthermore, it appears that four separate individuals, other than counsel for the hearing, spent inordinate amounts of time doing correspondence, drafting opinions, and compiling records, to the tune of over $5,600. This amount seems excessive given that much of this type of work does not seem to be substantive preparation for an arbitration.
The preparation and appearance time for main counsel amounts to almost $12,500. If I divide that number in half, given that the matter should have taken half the time that it did, I arrive at the sum of $6,250 (inclusive of HST) which I award to Coseco for its fees.
I also decline to award the full amount for the claimed disbursements for reasons similar to those stated above.
It is not clear to me why the cost of service of documents/subpoenas amounts to $2,660. This amount seems excessive and I award only $500. It is not clear to me why external photocopying is three times the amount of internal photocopying and I also reduce this amount to $500. I do not know what is meant by the disbursement called “productions from opposing counsel/records from viewpoint” and therefore decline to award anything in that regard. Coseco has claimed the maximum allowable for each of its expert witnesses but failed to detail the amount of time used for preparation and the amount of time each spent at the hearing. My recollection is that neither expert spent more than a few hours at the hearing. As a result, I award $600 for each expert for a total of $1200. The cost for a court reporter and transcripts is not included as a disbursement payable in accordance with the Expense Regulation. The total amount of allowable disbursements then is $2,929.95 (inclusive of HST).
CONCLUSION:
The total amount owing to Coseco for its reasonable expenses of the arbitration is $8,179.95.
August 18, 2017
Rosemary Muzzi Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 222 FSCO A14-010070
BETWEEN:
ANGEL GANAL Applicant
and
COSECO INSURANCE CO./HB GROUP/DIRECT PROTECT Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, as amended, it is ordered that:
- Mr. Angel Ganal shall forthwith pay to Coseco the total amount of $9,179.95 for Coseco’s expenses of the arbitration.
August 18, 2017
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.