Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2018 ONFSCDRS 145
Appeal P17-00086
OFFICE OF THE DIRECTOR OF ARBITRATIONS
YOGARASA YOGESVARAN
Appellant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Respondent
BEFORE:
David Evans
REPRESENTATIVES:
David S. Wilson for Mr. Yogarasa Yogesvaran
Jonathan Schrieder for State Farm Mutual Automobile Insurance Company
HEARING DATE:
On the Record with submissions received by July 13, 2018
APPEAL 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:
The appeal of the Arbitrator’s order dated November 16, 2017 is allowed in part. Paragraph 1 thereof is rescinded and replaced with the following:
Mr. Yogesvaran shall pay $10,811.97, all inclusive, to the State Farm Automobile Insurance Company for its expenses in this hearing.
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
October 5, 2018
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. ANALYSIS
Mr. Yogesvaran appeals the expense decision dated November 16, 2017 of Arbitrator Snider, who awarded State Farm a total of $16,115.96.
The Arbitrator did reduce a number of claims made by the successful Insurer. For instance, he correctly reduced insurer’s counsel fee claimed of $150 to the appropriate Legal Aid Rate.
Mr. Yogesvaran disputes the $1,000 ordered for law clerk fees. The Arbitrator had reduced the claim of $3,259.66, finding it excessive.
Mr. Yogesvaran submits that the amount claimed was simply the cost of doing business and would only be payable if it reduced the lawyer’s time. However, he cited no case law to that effect, and law clerk fees have often been awarded. This is a matter of discretion. As was recently stated by the Divisional Court in Clancy v. Aviva Canada Incorporated, 2018 ONSC 5390, “A costs appeal is a difficult proceeding in which to succeed. Costs orders are highly discretionary. They are entitled to significant deference on appeal or judicial review.”
Mr. Yogesvaran also disputes the list of disbursements on page 7 of the decision, for which the Arbitrator provides no reasons. Most of them appear to be simply costs for production of records, so I am not prepared to interfere, except with regard to the transcripts.
In that regard, the Arbitrator erred in awarding $5,303.99 as the expenses of the transcripts. A review of the Expenses Regulation suggests that transcripts are not meant to be recoverable as expenses: Kingsway General Insurance Company and Pereira, (FSCO P05-00031, September 17, 2007).
The appeal is therefore allowed to the extent of the transcripts. The order will be amended to show expenses payable of $10,811.97.
II. EXPENSES
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
October 5, 2018
David Evans Director’s Delegate
Date