Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2017 ONFSCDRS 24
Appeal P14-00024
OFFICE OF THE DIRECTOR OF ARBITRATIONS
JONATHAN LEDUC-MOREAU
Appellant
and
ECHELON GENERAL INSURANCE COMPANY
Respondent
BEFORE:
David Evans
REPRESENTATIVES:
Andrew Kerr for Mr. Leduc-Moreau
Jamie Pollack for Echelon General Insurance Company
HEARING DATE:
January 23, 2017, by teleconference
APPEAL EXPENSES ORDER
Under section 283 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, R.R.O. 1990, as amended, it is ordered that:
- Mr. Jonathan Leduc-Moreau shall pay Echelon General Insurance Company its legal expenses of the appeal proceedings herein, fixed at the amount of $10,000, inclusive of disbursements and HST.
February 2, 2017
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE AND BACKGROUND OF THE APPEAL
Mr. Leduc-Moreau was in an automobile accident on March 8, 2009. He claimed statutory accident benefits from his automobile insurer, Echelon General Insurance Company.
Echelon initially refused his claim for income replacement benefits (IRBs), but informed him he might be entitled to non-earner benefits (NEBs). Echelon later refused the NEB claim as well. Mr. Leduc-Moreau filed for mediation of both claims. In a preliminary issue decision dated June 3, 2014, the Arbitrator found the IRB claim was filed out of time but the NEB claim could proceed.
Mr. Leduc-Moreau appealed the Arbitrator’s finding that the limitation period applied to his IRB claim. I had to decide whether to acknowledge the appeal despite its being from a preliminary issue hearing. The parties provided fairly lengthy written submissions. Ultimately, in a letter decision dated September 4, 2014, I found it appropriate to acknowledge the appeal.
However, in a decision dated October 13, 2016, I confirmed the Arbitrator’s order of June 3, 2014, and dismissed the appeal.
Echelon now seeks its legal expenses of the appeal.
II. ANALYSIS
Echelon sent its Bill of Costs to Mr. Leduc-Moreau on October 31, 2016. He was not able to respond at that time, so Echelon requested this expense hearing. The request noted that Echelon did not anticipate Mr. Leduc-Moreau disputing entitlement.
The Bill of Costs totals $9,715 in fees, HST on them of $1,263, and $782 in disbursements. About $3,000 of the fees relate to the preliminary issue of whether I should acknowledge the appeal of the Arbitrator’s preliminary issue decision. The fees themselves properly reflect the Legal Aid Rate.
On November 14, 2016, I wrote to the parties and invited Mr. Leduc-Moreau to respond to the Bill of Costs in writing once he reviewed it. In the meantime, a teleconference was arranged.
Mr. Leduc-Moreau never did respond in writing to the Bill of Costs before the teleconference.
At the teleconference, Mr. Leduc-Moreau advised that he had no objections to most of the Bill of Costs, except for the portion related to whether or not to acknowledge the appeal of the preliminary issue hearing. In other words, he was disputing entitlement to that portion of the appeal process.
Mr. Pollack for Echelon objected, as this was the first he was hearing this submission. As noted above, he had written three months earlier anticipating that there would be no dispute about entitlement, and there had been no word from Mr. Leduc-Moreau since then.
Pursuant to Rule 79.2(b) of the Dispute Resolution Practice Code (Fourth Edition – Updated January 2014), Mr. Leduc-Moreau was supposed to provide a written response to the Bill of Costs. Since he never did, I find that Echelon was unfairly taken by surprise regarding the dispute about the preliminary issue hearing expenses. In those circumstances, I am not prepared to reduce the hours simply on that basis.
However, as has often been stated in cases like State Farm Mutual Automobile Insurance Company and Waldock, (FSCO P15-00068, March 18, 2016), a line-by-line assessment of the expenses claimed is not appropriate. Rather, a global assessment of reasonable expenses should be made.
The total amount claimed by Echelon is considerably higher than the average $2800 for successful insurers determined in Bains and RBC General Insurance Company, (FSCO P09-00005, September 8, 2010). However, that average is now seven years old. Further, the Legal Aid rates have climbed. Mr. Pollack’s is $136.43, or very close to the maximum allowed for insured’s counsel in Rule 78 of the Code. This was also a fairly complicated case, with a number of submissions that had to prepared and responded to. Accordingly, I find that a fair global assessment would be $10,000.
February 2, 2017
David Evans Director’s Delegate
Date