Neutral Citation: 2018 ONFSCDRS 87 FSCO A16-000247

BETWEEN:

SHAFIQA QADERI Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON EXPENSES

Before: Arbitrator Anne Morris

Heard: By written submissions completed on March 26, 2018

Appearances: Mr. J. Felice participated for Ms. Qaderi Mr. K. Griffith participated for Aviva Canada Inc.

Issues:

The Applicant, Ms. Shafiqa Qaderi (the “Applicant”), was injured in a motor vehicle accident on September 17, 2014 and sought accident benefits from Aviva Canada Inc. (“Aviva” or the “Insurer”), 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:

Is either party entitled to its expenses of the arbitration and, if so, in what amount?

Result:

The Insurer is entitled to its expenses of the arbitration (including the Expense Hearing) in the amount of $14,351.09 inclusive of fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

Background

The Arbitration Hearing was held before Arbitrator Mills on November 15, 16, 17 and 27, 2017. The decision was as follows:

The Applicant is not entitled to non-earner benefits.
The Applicant is not entitled to attendant care benefits.
The Applicant is not entitled to medical benefits as follows:

a. $5,284.52 for massage, physiotherapy and a mattress submitted by balance Physio, dated June 29, 2015;

b. $2,200.00 for a social work assessment provided by Galit Liffshiz and Associates, dated December 8, 2014;

c. $8,066.87 for rehabilitative support worker services submitted by Galit Liffshiz and Associates, dated December 8, 2014;

d. $5,677.00 for occupational therapy intervention submitted by Galit Liffshiz and Associates, dated December 8, 2014;

e. $4,701.30 (less amounts paid) for occupational therapy treatments submitted by Galit Liffshiz and Associates, dated December 8, 2017;

f. $2,887.13 (less amounts paid) for physiotherapy and massage treatment submitted by Balance Physio, dated February 2, 2015.

The Applicant is not entitled to a Special Award because Aviva unreasonably withheld or delayed payments to the Applicant.
The Applicant is not entitled to interest for the overdue payment of benefits.
No expenses were requested with respect to this Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter within 30 days of the Order, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

The parties were unable to resolve the issue of expenses and because Arbitrator Mills is no longer available, the Expense Hearing by way of written submissions was scheduled before me.

Authority to Award Expenses

Rule 75.1 of the Dispute Resolution Practice Code (the “Code”) provides that:

An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2. The items and amounts which may be awarded are in Rule 78 and the Schedule to the Expense Regulation found in Section F of the Code.

Rule 75.2 of the Code, which sets out the criteria to be considered in awarding expenses, states the following:

The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

a. Each party’s degree of success in the outcome of the proceeding;

b. Any written offers to settle made in accordance with Rule 76;

c. Whether novel issues are raised in the proceedings;

d. The conduct of a party or party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

e. Whether any aspect of the proceeding was improper, vexatious or unnecessary;

f. Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42(10) of that regulation; and

g. Whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits – Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44(9) of that regulation.

Criteria

Success appears to be the only criterion relevant to this proceeding. The Applicant submitted that certain conduct of the Insurer tended to prolong the Hearing including conduct which tended to lead to procedural issues with respect to the presence of the adjuster, called as a witness, during all of the Hearing; as well as issues as to the appropriate line of questioning of the adjuster, given that she was called by the Applicant for cross-examination. Procedural issues often arise in a hearing and the conduct pointed to by the Applicant does not fall in my view within the scope of procedural malfeasance anticipated by criterion (d) which references failure to comply with undertakings and orders.

The Applicant submitted that an argument raised late by the Insurer that treatment plans were not signed was a novel issue but appears to be using “novel” in the sense of “surprising” as it was raised in closing. I do not consider the issue novel in that the argument is within the parameters of the Schedule and if the timing was improper as suggested by the Applicant, any objection made at the time appears to have been overruled as the failure to sign treatment plans is addressed in the decision. As regards success, the Insurer was successful on all issues and is entitled to its expenses.

Expenses Award

The Insurer claims legal fees of $29,231.54, exclusive of HST, for three lawyers and three law clerks as well as disbursements of $3,743.13, also exclusive of HST.

It is trite law that a line by line assessment of expenses is not necessary but rather a broad strokes and pragmatic approach can be taken to determine an amount for expenses that is reasonable in all of the circumstances of the case. I also accept that the amount should be reasonable having regard to the consumer protection nature of the legislation in question and having regard to access to justice issues. In this case, I find that a 2:1 ratio of preparation time to hearing time is appropriate in relation to the issues in dispute. The Applicant submitted that two of the four days of hearing in this case were half days while the Insurer refers to four full days. In taking a broad strokes approach, however, and in including the expenses associated with the Expense Hearing, I accept four days of hearing time at approximately seven hours per day.

The Applicant, according to her uncontradicted submission, was represented by one lawyer at the Hearing. I will therefore allow the Insurer 84 hours (28 + 56) at the legal aid rate for Mr. Griffiths, the lead lawyer in the case, of $136.43 per hour or $11,460.12 plus $1,489.82 for HST for a total of $12,949.94 in legal fees.

As regards the disbursements, the Insurer claims $1,605.60 without supporting documentation for photocopies, printing and scanning in circumstances where the Applicant submitted that the Applicant provided the bulk of the materials used for the Hearing. I will allow $300.00 as a reasonable additional office expense associated with this arbitration. I will allow the $39.96 claimed for courier expenses as reasonable. I do not understand the unsupported facsimile and long distance expenses, normal office expenses, charged to this arbitration and I do not allow them. I do not have an explanation or supporting documentation for the $1,076.71 claimed in travel expenses and I do not allow them. I will allow the $400.00 for hearing attendance and $500.00 for preparation disbursed for a medical expert as being reasonable on its face.

I therefore allow disbursements of (300+39.96+400+500) $1,239.96 plus HST of $161.19 for a total of $1,401.15 for disbursements.

The total award for legal fees and disbursements, including for those associated with the Expense Hearing, is $14,351.09 inclusive of HST.

EXPENSES:

As noted, the expenses associated with the Expense Hearing are included in the overall expense award.

April 26, 2018

Anne Morris Arbitrator

Financial Services Commission of Ontario