Neutral Citation: 2017 ONFSCDRS 35

FSCO A14-007686

BETWEEN:

JASWINDER KAUR KHAIRA Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Arbitrator Marcel D. Mongeon

Heard: By written submissions completed December 30, 2016

Appearances: Mr. Santino Lofranco and Mr. Joseph Corriero participated for Mrs. Jaswinder Kaur Khaira Ms. Anju Sharma participated for RBC General Insurance Company

Issues:

The Applicant, Mrs. Jaswinder Kaur Khaira, was injured in a motor vehicle accident on September 16, 2013 and sought accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her 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 issue in this Expense Hearing is:

What expenses, if any, is either party entitled to?

Result:

The Applicant shall pay the Insurer $5,738.05 forthwith, comprising of $500.00 for disbursements (no HST) and $5,238.05 for expenses (includes HST of $602.61).

EVIDENCE AND ANALYSIS:

This is related to my Hearing Decision, dated October 31, 2016, in the above-captioned file. After determining that the Applicant was not entitled to a Special Award, the parties were unable to agree on entitlement to the expenses of the Hearing.

I note that in this file, all matters had been settled prior to the Hearing other than the issue of the Applicant’s claim for a Special Award. This was argued over two days of Hearing.

Expenses in an Arbitration Hearing are governed by Regulation 664, R.R.O. 1990, Automobile Insurance made under the Insurance Act, as amended. Section 12 thereof, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, sets out a number of criteria that an Arbitrator shall consider in awarding all or part of the expenses of an Arbitration proceeding. These criteria are (with some editing):

Each party's degree of success in the outcome of the proceeding.
Any written offers to settle […].
Whether novel issues are raised in the proceeding.
The conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding […].
Whether any aspect of the proceeding was improper, vexatious or unnecessary.
Whether the insured person refused or failed to submit to an examination […].

To respond to each of these criteria in turn, I note:

The Insurer prevailed on the only issue in dispute. Its actions were found to be sufficiently reasonable so as not to warrant the making of a Special Award.

There were no offers to settle the specific issue of the Special Award that were brought to my attention. Rather, the Insurer and the Applicant had made an agreement to settle all other issues in dispute.

In my view, there were no novel issues presented.

The Hearing on the Special Award took two days. In my view, it could easily have been dealt with in one day. I found that the inexperience of the counsel arguing the Applicant’s position likely prolonged the Hearing time required by one day.

Although the Insurer prevailed in the Hearing, it was not improper, vexatious or unnecessary for the Applicant to have pursued the Special Award issue. There were enough facts – including the settlement by the Insurer shortly before the Hearing – to make the point arguable.

No relevant circumstances of missing examinations were brought to my attention.

Based on the foregoing, the Insurer is entitled to an expenses award.

In setting applicable rates for representatives, I am guided by section 78 of the Dispute Resolution Practice Code. This provides that the Legal Aid Rates should be used unless I am satisfied that a higher rate should be used. Under the foregoing criteria, I find that the normal Legal Aid Rates are appropriate.

I also find that the appropriate amount of time to be awarded for expenses for the Hearing is for two days of Hearing (at eight hours per day at the appropriate Legal Aid Rate for the Insurer’s principal counsel); two days of preparation for the Hearing (at eight hours per day for each of the principal counsel and an assistant); and two hours of an assistant counsel’s time to prepare the Bill of Costs. I have used the full two days of Hearing to recognize that the Hearing took longer because of the inexperience of the Applicant’s representatives.

From the Insurer’s Bill of Costs, the Insurer’s principal counsel’s Legal Aid Rate is $122.78 per hour, $94.28 for an assistant counsel’s time, and $32.37 for an assistant.

I calculate this as 32 hours (2 days of hearing; 2 days of preparation x 8 hours per day) for the principal counsel (32 x $122.78 = $3,928.96), 16 hours (2 days of preparation x 8 hours) for the assistant (16 x $32.37 = $517.92), and 2 hours for assistant counsel (2 x $94.28 = $188.56), for a sub-total of $4,635.44, plus HST of 13% ($602.61), for a grand total of $5,238.05.

I also consider appropriate disbursements and note that the Insurer submitted a total of $1,162.55. However, there were items in its list such as process server/delivery or Hearing/FSCO fees, which are difficult for me to understand as being necessary in the context of the Special Award Hearing. I also note that the disbursements listed in the Insurer’s Bill of Costs do not come to the total which the figures would suggest.

I fix a total of $500.00 for disbursements as being reasonable for a two-day Hearing. This includes in-city transportation as well as photocopying relating to the brief of documents.

EXPENSES:

The total of my award is $5,738.05, comprising of $500.00 for disbursements (no HST) and $5,238.05 for expenses (includes HST of $602.61).

February 6, 2017

Marcel D. Mongeon Arbitrator

Financial Services Commission of Ontario