Author Archives: Admin4

http://canlii.ca/t/g2pt6

[3]          This claim arises from a rear-end motor vehicle accident which took place on June 19, 2010. The statement of claim was issued on June 7, 2012. Pursuant to Rule 14.08(1) the statement of claim should have been served by December 7, 2012. It was not.

[4]          It appears that due to inadvertence the plaintiffs’ lawyers made no attempt to serve the defendant with the statement of claim before December 7, 2012 or after. It appears that a courtesy copy of the statement of claim was provided to the defendant’s insurer in June 2013 and the defendant was advised of the claim by her insurer in August 2013.

[5]          It also appears that the plaintiffs’ lawyers encountered significant difficulty in bringing this motion in a timely fashion. The plaintiffs’ lawyers apparently discovered the lack of service issue shortly after the deadline had expired. In January 2013 a motion date seeking an order to extend time was booked for June 19, 2013. The lawyer with carriage of this matter on behalf of the plaintiffs was unable to attend on that date. This motion was then rescheduled for December 11, 2013. Unfortunately, the December date was not confirmed and as a result this motion was once again rescheduled, this time to January 16, 2014.

http://canlii.ca/t/g2mjh

[10]           On July 10, 2012, a statement of claim was issued claiming inter alia non-earner benefits.  The only real issue on this motion is whether this claim is barred by the limitation set out in s.281.1 of the Insurance Act.

[11]           I am guided by two judgments of the Ontario Superior Court of Justice.  They are Katanic v. State Farm Mutual Automobile Insurance Co., [2013] O.J. No. 3605 and Seitzema v. Economical Insurance, 2013 ONSC 4299 (CanLII), 2013 ONSC 4299.

[12]           Both cases address the limitation period.  In Katanic, Madam Justice Milanetti, at paras. 25-26 stated:

25        Limitations are important.  They provide certainty; ensure that evidence is maintained; and ensure that plaintiffs do not sleep on their rights.  This is particularly so when they are represented by counsel.

26        In the case before me, the denial was made, an explanation was given in clear and straightforward language, and dispute mechanisms and timeframes were provided.  The plaintiff appears to have legal representation at the time of these events.

[13]           At para. 36, Madam Justice Milanetti continued:

Mr. Katanic had a denial (even if considered premature) when he had counsel who would be deemed to have known that it was premature, yet nothing was done until March 2010 (Mediation application), and November 21, 2011 (Statement of Claim).  Even if the claim crystallized on December 7, 2006 (26 weeks post accident), the claim is commenced well past the statutory limitation periods of two years or December 7, 2008.

[14]           Madam Justice Milanetti delivered summary judgment in favour of the insurer.  The same issues were before Mr. Justice Sloan in the case of Seitzema v. Economical Insurance.  In that case, the plaintiff received a Form (OCF-9) Explanation of Benefits Payable by Insurance Company dated December 19, 2005.  The form indicated she was not eligible for non-earner benefits, though there was an ambiguity with respect to her entitlement to receive those non-earner benefits.  In 2006, the plaintiff retained counsel to advise her with respect to her rights, with respect to the 2005 motor vehicle accident.

[15]           At para. 21, Mr. Justice Sloan stated:

Once the plaintiff retained a lawyer to seek advice on her rights, she can no longer plead ignorance or that Part 3 of The Form was misleading to her personally because she was unsophisticated with respect to auto insurance.

[16]           Mr. Justice Sloan continued at para. 22:

Her lawyer would have known sometime in early 2006 that limitation periods were running.  Absolutely no explanation was given to this court to explain why the lawyer did not file anything until he filed for mediation in April, 2010.

[17]           Given her representation by counsel, Mr. Justice Sloan dismissed the plaintiff’s action and her request to amend her statement of claim.

[13]      The same need for description applies to legal bills.  Otherwise, how can an assessing court determine if there was repetition of activity within a firm of many lawyers (the client should not be charged for the getting up to speed of a successor lawyer in the firm finding himself or herself with a file as one of the partners or associates had).  How can the assessor determine if whatever counsel did on a particular day for a particular number of hours or fraction thereof was something efficient relative to the progress of the file?  We would not be happy if we received a bill from a dentist or an automobile technician which spoke of “conversation with colleague”.  One would invariably wonder about the topic of the conversation “was it about my case, what was achieved”.  In summary, there has to be detail on a legal invoice with respect to what was done and for what reason.  Regrettably there is no such description provided in the bill of costs provided by the counsel for the defendant.  Given this absence the court has to rely on a general understanding of what takes place in such an action before a trial commences and what it actually observes as to the activities of counsel during the course of trial.

[14]      Up until the time of the offer the proposed fees on a partial indemnity basis are almost $13,000.  That time would encompass pleadings, productions and examinations and pre-trials.  There would be invariably some preparation for trial given the proximity of the actual offer to the commencement of the trial proper.  There were several counsel involved according to the bills of costs.  One assumes that the two counsel who were counsel at trial were the directing force behind these pre-trial efforts.  The contributions of other counsel is impossible to determine as the detail referenced above is absent.  The same could be said with respect to whatever the contribution of the law clerks.  For all of the above the costs of the services rendered prior to the offer are fixed at $10,000 plus HST.

[15]      During the trial obviously the jurist’s focus is on the two counsel for the defendant.  It was readily apparent that they worked as a team, each complimenting the other.  As mentioned, there were motions by the plaintiff, some of which were abandoned at the courtroom door along with some of the damages sought, for example, punitive damages.  The trial proceeded over 11 days in 2012.  The usual amount of daily time trial counsel are “on deck” is five hours.  One assumes that above and beyond the actual court attendance, there is daily preparation of at least two hours for every hour one is “on deck”.  Therefore, over 11 days two counsel would dissipate 110 hours in the courtroom and at least 220 hours in preparation.  The actual time claimed by the two counsel is closer to 500 hours.  The post-offer bill of costs is handicapped by the same lack of detail as the extent or need for the services of other counsel and law clerks aside from the two counsel robed.  Having considered all of the above the costs of services post the offer is fixed at $95000 plus HST.

[16]      The disbursements incurred prior to June 10^th, 2010 appear reasonable and are fixed at $794.88.

[17]      Those disbursements post June 10^th, 2010 are problematic in two areas; the photocopying of $4,432.27 and $22,000.00 for preparation, attendance and witness of Dr. Dost.

[18]      An appreciation of the first area would have been assisted by the rate per page the firm is charging and whether there were any economies that could have been affected by outsourcing.  The second area of concern is on top of the costs of Dr. Dost’s IME Report which alone cost $8,400.00.  What was involved in the preparation of this expert witness?  Did he have to go beyond a review of his initial report?  These figures are not inconsequential.  Again with detail a greater appreciation can be made beyond the overall reaction to the immensity of the bill.  Considering all of the above the appropriate sum for these particular disbursements beyond July 1^st, 2010 has reduced the photocopying to $2000.00 and the preparation, attendance and witness relating to Dr. Dost to that of $12,000.

[20]      It is observed that counsel for the plaintiff did not respond to the Bills of Costs submitted by the defendant.  Nor did counsel for the plaintiff make any cost submission to this court.  Given this lack of response, if counsel for the defendant receives no response from counsel for the plaintiff after a week of being providing the latter with a copy of this cost judgment for the purpose of approval as to content or form, counsel for the plaintiff may submit their judgmentto the court for its review.

http://canlii.ca/t/g0sdz

https://www5.fsco.gov.on.ca/AD/4031

1.     Mr. Park is precluded from applying for arbitration for all but two of the benefits in dispute, because his lawyer failed to file his application for arbitration within the two-year time limit set out in the Act and the Schedule.

…….Mr. Park’s only explanation for the delay was that his lawyer is to blame for the late filing of his application for arbitration of his claims against Dominion. This is beyond the jurisdiction of the Financial Services Commission and is a matter Mr. Park may wish to take up with the Law Society of Upper Canada.

http://canlii.ca/t/g02jc

http://canlii.ca/t/g01l3

http://canlii.ca/t/g01jx

http://canlii.ca/t/fzhs7

http://canlii.ca/t/fzdrl