Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2018 ONFSCDRS 151

Appeal P17-00002

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SRISELVARANY VAITHEESWARAN Appellant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Respondent

BEFORE: David Evans

REPRESENTATIVES: David S. Wilson for Mrs. Sriselvarany Vaitheeswaran Jonathan Schrieder for State Farm Mutual Automobile Insurance Company

HEARING DATE: By written submissions received by October 22, 2018

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:

1. State Farm Mutual Automobile Insurance Company shall pay Mrs. Sriselvarany Vaitheeswaran her legal expenses of the appeal proceedings herein, fixed at $2,650, inclusive of disbursements, HST, and the preparation for this appeal expense hearing.

October 30, 2018

David Evans Director’s Delegate

Date

REASONS FOR DECISION

In a decision dated August 23, 2018, I allowed Mrs. Sriselvarany Vaitheeswaran’s appeal of Arbitrator Robinson’s letter decision of November 29, 2016, wherein he dismissed the proceeding without a hearing. I found that the Arbitrator did so without providing notice to Mrs. Vaitheeswaran and without allowing her any time to provide grounds to object to the proposed dismissal.

Mrs. Vaitheeswaran now seeks $2,534.90 for her legal expenses of the appeal, representing 12 hours for counsel fee at $150 an hour plus HST, and about $500 in disbursements.

By way of background, I adopted an expedited process, providing for the bill’s submission, a response, and a reply. I assumed that, if there were any disputes about disbursements, the reply would contain the documentation. I will be clearer on that point in the future because State Farm submits that I should disallow the disbursements as no supporting documents were initially provided. I find they were not necessary in any event in the circumstances.

For instance, the Notice of Appeal fee represents half of the cost of the disbursements. However, the copy of the cheque is in my file. Most of the other expenses relate to photocopies made at Mr. Wilson’s office, and I am prepared to accept those amounts.

State Farm also submits that the total of 12 hours spent on this file is unwarranted.

First, it claims that the 0.2 hours claimed per letter was excessive for the seven letters received, so the total 1.4 hours should be reduced to 0.7. However, as pointed out by Arbitrator Feldman in Hutchinson and Security National Insurance Co./Monnex Insurance Mgmt. Inc., (FSCO A03-001712 and A05-000327, November 26, 2007), the Commission does not engage in a line-by-line analysis of a party’s expenses (which is what State Farm did in this case). Further, as he noted, it has been previously held that using an average of 0.2 hours per letter is reasonable. I agree with the conclusion in Hutchinson and I am not prepared to reduce the amount claimed.

Second, State Farm submits that for this brief and relatively simple appeal, the time claimed for travel, preparation for the appeal, and preparation of the Bill of Costs was excessive.

For instance, State Farm claims that the 1.65 hours for preparation for appeal should be reduced to one hour. Mr. Wilson submits in reply that “Respectfully, the submission that the insured’s counsel spent about 37 more minutes in preparation that he ought to have spent is just a bit much” where the Insurer’s own Bill of Costs was not produced.

In fact, there are two entries for preparation. The first is for January 14, 2018 for 0.8 hours. The appeal hearing was to proceed shortly thereafter, but Mr. Wilson was not able to attend due to sudden illness. The second entry is 0.85 hours for July 23, 2018, shortly before the date the appeal hearing went ahead. I do not find the extra 37 minutes preparation excessive given the passage of time between the proposed and the actual hearing dates.

As to the other amounts, I find they are reasonable. For instance, whether an appeal is simple or complicated, it takes the same amount of time to get here.

In conclusion, I find that the total amount claimed is reasonable. I will add an additional hour for preparation of the reply. Accordingly, State Farm shall pay to Mrs. Sriselvarany Vaitheeswaran $2,650 for her legal expenses of the appeal, inclusive of disbursements and HST and the preparation for this appeal expense hearing.

October 30, 2018

David Evans Director’s Delegate

Date