Neutral Citation: 2018 ONFSCDRS 92

FSCO A16-003457

BETWEEN:

CLIFTON PALMER Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

DECISION ON EXPENSES

Before: Arbitrator Anne Morris

Heard: By written submissions completed on March 15, 2018

Appearances: Ryan Naimark, legal counsel, represented the Applicant Anju Sharma, legal counsel, represented the Insurer

Issues:

The Applicant, Mr. Clifton Palmer (the "Applicant"), was injured in a motor vehicle accident on March 21, 2015 and sought accident benefits from RBC General Insurance Company (the "Insurer"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his 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 in the amount of $10,955.86 inclusive of fees, disbursements and HST, and inclusive of the costs related to the Expense Hearing.

EVIDENCE AND ANALYSIS:

The Arbitration Hearing was held before me on October 17, 18 and November 30, 2017. My decision was as follows:

The Applicant is not entitled to receive a weekly income replacement benefit of $396.41 from March 28, 2015 to 104 weeks after the accident, less amounts paid by the Insurer.
The Applicant is not entitled to receive a medical benefit for services by PhysioMed as follows:

a) $210.91, the outstanding amount remaining, pursuant to a treatment and assessment plan dated June 10, 2015 in the amount of $1,310.91;

b) $1,920.00 pursuant to an assessment and treatment plan dated July 7, 2015.

The Applicant is entitled to receive $200.00 for a disability certificate dated April 13, 2015 upon receipt of an invoice.
The Applicant sustained injuries as a result of the accident which are minor injuries within the meaning of the Minor Injury Guideline.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, 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 Applicant is not entitled to interest for the overdue payment of benefits.

The parties were unable to resolve the issue of expenses and an 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

The Insurer was successful on all issues in this arbitration. The Insurer also referenced the exchange of offers to settle on a full and final basis. Offers of settlement of the underlying insurance policy are difficult to assess when the insurance policy as a whole is not at issue in the arbitration but given my findings in relation to the Minor Injury Guideline, the Insurer's offer was the more reasonable offer. The Insurer also pointed out that it felt compelled to bring two motions for production.

Success, however, is the most significant criterion and the Insurer is entitled to its expenses. The Insurer claims $39,474.46 inclusive of HST for expenses: $23,419.44 for legal fees, and $16,055.02 for disbursements. The Applicant claims that the both the legal fees and disbursements claimed are excessive and points out that while the Hearing took place on three days, two of those days were half days.

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 complexity of the issues in dispute. I will allow approximately 20 hours of hearing time over three days plus 40 hours for preparation time for a total of 60 hours at the legal aid rate for Ms. Sharma of $122.78 per hour for a total of $7,366.80 for fees plus HST of $957.68. The total for legal fees inclusive of HST is $8,324.48.

The Insurer claimed disbursements as follows:

916.00 for laser printing and fax 13.80 for copies-copies of productions-Kopyrite-Digital Imaging 16.32 same 25.68 same 45.09 same 37.56 same 30.60 same

I will allow $300.00 as a reasonable additional office expense for printing and copying.

5.00 delivery, messengers 5.00 same 184.50 Process serving 314.50 same

I will allow $150.00 as reasonable for these items given the methods of delivery and service of documents available.

15.93 for local parking 12.39 same

Local parking and travel is not an expense allowable under the Expense Regulation, Section F which is part of the Dispute Resolution Practice Code.

478.00 for court reporter 478.00 same 478.00 same

A court reporter is not required and was the choice of the Insurer. I do not allow this expense.

77.64 for witness fees for Dr. Weisleider

This is not allowed as Dr. Weisleder's fees for testifying are included below,

2500.00 for witness fees for Dr. Weisleider

I will allow $900.00, the maximum allowable under s. 5 of the schedule to the Expense Regulation ($500.00 for preparation and two hours of testimony allowed at $200 per hour for $400.00).

5700.00 for witness fees for Dr. Syed 2800.00 same

I will allow $900.00, the maximum allowable under s. 5 of the schedule to the Expense Regulation ($500.00 for preparation and two hours of testimony allowed at $200 per hour for $400.00).

78.66 for lay witness fees.

I will allow the $78.66 for this amount.

The total allowed for disbursements is $2,328.66 plus HST of $302.73 or a total of $2,631.39. The total allowed for expenses, inclusive of HST is $10,955.87 ($8,324.48 +$2,631.39).

EXPENSES:

I consider it reasonable to include the costs of the Expense Hearing in the general award of expenses above.

April 30, 2018

Anne Morris Arbitrator

Financial Services Commission of Ontario