Dispute Resolution Services of Ontario
Dispute Resolution Services de résolution des différend of Ontario de l’Ontario
Neutral Citation: 2020 ONFSCDRS 10
A14-004904
BETWEEN:
MARIA DIAS
Applicant
and
COACHMAN INSURANCE COMPANY
Insurer
DECISION ON EXPENSES
Decision By: Maggy Murray
Heard: By Written Submissions completed April 27, 2020
Appearances: Stanley Razenberg for Ms. Dias Daniel Himelfarb for Coachman Insurance Company
Issues:
The Applicant, Maria Dias, was injured in a motor vehicle accident on September 28, 2012. Arbitrator Alan Mervin conducted a 17 day arbitration hearing in this matter between August 28, 2017 and May 25, 2018. The parties then completed closing arguments by written submissions.
Unfortunately, Arbitrator Mervin died on July 8, 2019 before he was able to render a decision.
On September 11, 2019, this file was assigned to me by John Lobo, the Director of Arbitrations. On November 13, 2019, the parties provided me with exhibits that were missing from the material I received.1
In a decision dated February 6, 2020, I dismissed Ms. Dias’s claims for non-earner benefits from June 6, 2013 to date and ongoing and medical and rehabilitation benefits totalling $21,938.25.
The issue in this further hearing is:
- Is Coachman entitled to its expenses incurred in respect of this arbitration hearing?
Result:
- Ms. Dias shall pay to Coachman its expenses of this proceeding, fixed in the amount of $32,000.00, inclusive of all legal fees, disbursements and HST.
EVIDENCE AND ANALYSIS:
Coachman seeks its arbitration costs for the following:
$52,201.03 Legal fees (counsel and law clerk), exclusive of HST on legal fees
$12,508.17 Disbursements2 inclusive of HST (13%) on the disbursements
- $ 6,786.13 HST (13%) on legal fees
$71,495.33 TOTAL3
Coachman calculated the above legal fees based on the hourly rates set by the Legal Aid Services Act, 1998,4 pursuant to Rule 78 of the Dispute Resolution Practice Code – Fourth Edition (the Code).
II. BACKGROUND AND ANALYSIS
Dispute Resolution Practice Code – Fourth Edition (the Code):
Rule 75.2 of the Code contains the criteria for determining entitlement to expenses. Those 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 proceeding; (d) the conduct of a party or a 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](https://www.canlii.org/en/on/