• homeslide-220513-04 FAIR – supporting auto accident victims through advocacy and education
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Where Do the Dollars Go?

‘FAIR – supporting auto accident victims through advocacy and education’

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Please forward us any information you might have about the high costs paid out in the course of a claim at: fairautoinsurance@gmail.com

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IN DEPTH – Ontario’s biggest political donors revealed

4. Insurance Bureau of Canada: $315,310

The lobby group for insurance companies split its donations primarily between the Liberals ($152,325) and the PCs ($143,035).

The analysis includes all donations to the central parties since January 2013, whether for the annual period, byelections or the 2014 election, as well as donations to the candidates in the Liberal leadership race of 2013 and the PC leadership race in 2015. The data do not include donations given to party constituency associations or individual election candidates.

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Murillo v Turnbull, 2016 ONSC 1906 (CanLII)

[26] Taking on a personal injury file on a contingent fee basis is a gamble. The law firm puts up their own money to fund disbursements, and carries their work in progress on their books unbilled, in the expectation that they will ultimately reap a generous reward when the case is concluded by a settlement or judgment. In many or most cases, the firm stands to recover as much as 1/3 of the client’s award, which usually amounts to substantially more than the firm would earn on the basis of hourly billings.

[29]           That is not to say that transfer of the file without the assumption of disbursements should necessarily be refused whenever such a retainer agreement is in place.  There are other considerations that could potentially be at play.  Here, the plaintiffs are on public assistance, and do not have the means to pay $11,000 in disbursements.  Denying them their file could well raise access to justice issues.  However, this would only become a concern if it were clear that they simply could not retain competent counsel who were willing to carry their disbursements.  From all of the evidence in this file, I am not persuaded that this is the case.

[30]           I find it telling that Arvai maintains that it was unable to pick up $11,000 in disbursements, yet was apparently prepared to incur legal expenses totalling $25,991.84 to litigate the issue.  This was a shockingly disproportionate waste of legal resources.

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Munas v Yusuf et al, 2015 ONSC 6845 (CanLII)

[3]               The plaintiff argues that since I did not rule on it he ought to be awarded costs with respect to the portion of the motion that dealt with the negligence of Yusuf and the defendant, Vince Henderson (“Henderson”), and whether there was a genuine issue as to their fault for the accident.  I do not agree with this argument.  There is no entitlement to costs on a matter I did not rule upon.  In any event, most of the motion as argued before me dealt with the limitation issue.  Very little time was spent on the issue of fault for the accident.  This argument is like an argument for a distributive costs award.  That sort of award is to be avoided.  Yusuf was successful on the motion.  It does not matter that one of the arguments was not considered in arriving at my decision.

[4]               The defendant, Yusuf, asks for full indemnity costs due to delays, endless disputes over non-contentious issues, and the volume of correspondence and materials from the plaintiff’s counsel.  As one example, on the summary judgment motion, the plaintiff brought two “cross-motions” of his own with large motion records which should have been brought before the Master.  Another example of the type of conduct the defendant is complaining about is the plaintiff’s costs submissions.  The plaintiff argued, in my view, unreasonably, that I should disregard Yusuf’s costs submissions as the submissions exceeded my direction of three pages.  They did so by nine lines.  At the same time, the plaintiff’s submissions were three pages of single-spaced submissions using a minimal font size with minimal margins, all contrary to Rule 4.01(1).  The plaintiff’s submissions were substantially more than three pages if properly spaced, with proper margins and proper font size.  Apparently because only three actual pieces of paper had been used, the plaintiff felt he had complied with my direction, when he clearly had not.  These are but two examples of the sort of conduct this defendant is complaining about.

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Mullin v. Lagace, 2015 ONCA 757 (CanLII)

[1]         The appellant, Brenda Mullin, was injured in a car accident as a passenger in a vehicle driven by Randy Lagace.  She added her own insurance company, the respondent Allstate, as a defendant when she discovered that Mr. Lagace was uninsured. The action settled before trial for $190,000 plus costs to be agreed upon or assessed.

[2]         At the assessment, Ms. Mullin sought $528,522.25 in costs and $20,000 for disbursements.  The assessment officer issued a Certificate of Assessment of Costs in the amount of $231,137.93.

[3]         Allstate appealed to the Superior Court of Justice under s. 17(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and under r. 62.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194.  The appeal judge allowed the appeal and substantially reduced the costs award to $102,000 all-inclusive.  Ms. Mullin wishes to appeal that decision to this court.

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Nguyen and Economical  [+] Arbitration, 2015-10-27, Reg 403/96. Expenses FSCO 4665.

Amount of Expenses

Economical claims a total of $28,829.45 in expenses.

In determining the amount of expenses to be awarded, arbitrators at FSCO have continually found that the overriding consideration is reasonableness.

Total fees and disbursements awarded in this case are:

Fees:                      $5,686.80

Disbursements:        2,219.85

TOTAL:                $7,906.65

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Sawah v Warren, 2015 ONSC 5373 (CanLII)

[92]                 The evidence against Ms. Jhuti is compelling.  Even on the basis of a paper record, it seems quite clear that she falsely represented to Mr. Sawah the settlement amounts of both the Accident Benefits claim and the tort claim.  Her explanations for her actions are riddled with improbabilities.  However, since this matter must proceed to trial in any event, I will refrain from making any actual finding of fraud against her.  Her culpability will be determined at trial.

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Basandra v Sforza, 2015 ONSC 5059 (CanLII)

[5]               The plaintiff seeks either substantial indemnity costs of approximately $547,000 or partial indemnity costs of approximately $417,000.  These amounts include approximately $124,000 of disbursements, as well as costs of prior counsel.  HST is only included with respect to the costs of prior counsel.

[11]           In the exercise of my discretion, the defendant shall pay the plaintiff costs on a partial indemnity basis in the amount of $160,000 for counsel fees, $115,000 for disbursements, and shall pay any applicable HST.

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Hordo v State Farm Mutual Automobile Insurance Company, 2015 ONSC 4409 (CanLII)

[10]           The Applicant does not provide this Court with a submission on what a reasonable amount of costs would be other than to assert that no costs should be awarded. I do not agree that such is the appropriate result in this case, having regard to all of the factors which are referred to above. The Applicant was unsuccessful, with the Application being dismissed. In this case, there must be an appropriate cost award as set out in out Rules of Civil Procedure and in the relevant jurisprudence.

[11]           I exercise my discretion to fix costs in the amount of $30,000, which includes all disbursements and applicable taxes to be paid by the Applicant to the Respondent.

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Jugmohan v Royle, 2015 ONSC 4844 (CanLII), 

[38]      The defendants reiterate that the costs they seek are both in fact reasonable and within the reasonable expectation parties. The action was commenced in 2000 and did not proceed to trial until 2015. Further, the trial lasted for 10 days and was heard over a two and a half week time period. The total partial indemnity costs of these defendants combined is slightly over $110,000.

[39]      The defendants submit that the only question is whether the plaintiff could reasonably expect to be liable for two sets of costs. In response, they highlight that the plaintiff sued two sets of defendants. Their position, not only in their pleadings, but also at the pre-trial and in mediation, made her aware of the risk that she could be awarded nil damages. They state that the fact that the plaintiff was awarded nil dollars shows just how reasonable that possibility was. As a result, she cannot complain about paying two sets of costs.

[40]      The defendants highlight rule 57.01(1)(a), which expressly allows a trial judge to consider the amount claimed and the amount recovered. If the plaintiff had no real expectation of receiving $500,000 in damages, the Claim could have easily been amended prior to trial to reflect her realistic expectations.

[58]      The defendants and their counsel took a consistent position throughout the litigation. They maintained at all times that they would not offer anything toward resolution other than a dismissal of the action without costs. The plaintiff’s only recourse was not to pursue a trial. She had choices. The plaintiff was well aware that the defendants would not be changing their consistently-held position. It was open to the plaintiff to either agree to a dismissal of the action without costs or proceed through trial. She had full knowledge that if it did not go well, she could potentially be responsible for paying two sets of costs.

[69] Naccarato and Royle’s costs are fixed in the sum of $49,900 inclusive of fees, disbursements, and HST. Bascom’s costs are fixed in the sum of $20,000 inclusive of fees, disbursements and HST. These costs are payable by the plaintiff to the respective defendants within 120 days.

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TTC benefits used in alleged insurance fraud

In a press release Wednesday, the transit workers’ union called for an exhaustive investigation into the allegations and the benefits’ administrator, Manulife.

“The damage is not just financial; it will slow down and even potentially discourage legitimate claims, many of which involve children with neuromuscular and skeletal disabilities who need orthoses to live a normal, pain-free life,” said Manny Sforza, executive vice-president of Amalgamated Transit Union Local 113.

http://metronews.ca/news/toronto/1435307/ttc-benefits-used-in-alleged-insurance-fraud/

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Gnys v Narbutt, 2015 ONSC 4407 (CanLII)

[1]               The Plaintiff brings this motion for summary judgment for recovery of three litigation loans provided by her to the Defendant in 2008 and early 2009 of $10,000, $2500 and $1000 totaling $13,500.

[2]               Although the Defendant admits she has not repaid two of the loans totalling  $11,000 despite receiving approximately $306,000 in 2011 for personal injury damages as a result of a 2004 motor vehicle accident, she now concedes her responsibility to repay the principal amount of those  two  loans. However, she objects to paying the stipulated interest rate on the loans of 18% compounded monthly which is an effective annual rate of 19.5%. She suggests interest should only be payable at slightly more than the bank prime rate of 4%.

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http://listings.ftb-companies-ca.com/l/112114812/Odyssey-Health-Services-in-Burlington-ON

Odyssey Health Services Accident and Health Insurance Agencies – Burlington, ON

Overview Odyssey Health Services is an accident and health insurance agency in Burlington. This private company was founded in 1982. Odyssey Health Services has been around 13 years longer than the typical organization in Canada, and 14 years longer than the average accident and health insurance agency.

Revenue The organization generates $40.4M in annual revenue, making it one of the largest companies in Canada and in the accident and health insurance agency industry.

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Zurich Life Insurance Company Limited v Branco, 2015 SKCA 71 (CanLII)

[211] As discussed, the evidence indicates that Mr. Branco has suffered a significant deal of mental distress as a result of the combined actions of Zurich and AIG. He became depressed, anxious and irritable. He lost his house and had to move back in with his mother. He separated from his wife. He had to rely on his daughter for financial assistance. The loss of his income, independence, and family life caused him significant anxiety. While some of this mental distress may have been caused by the injury itself, I am satisfied that it was significantly exacerbated by Zurich’s breach of its contract with Mr. Branco.

[212] Damages for mental distress must therefore be awarded, though in a lesser amount than what was ordered by the trial judge. As discussed above, I would set the total amount of such damages at $45,000. Respecting the assignment of responsibility for mental distress damages used by the trial judge, I would set aside the award of $300,000 against Zurich and substitute an award of $30,000.

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El‑Khodr v Lackie, 2015 ONSC 2824 (CanLII)

[2]               In this decision, I address the issue of whether it is correct in law to instruct the jury that the Plaintiff’s potential entitlement to coverage under the ODBP may be taken into account as a contingency in awarding future medication costs.
 

[3]               The ODBP covers most of the cost of prescription drugs for certain categories of individuals, including those aged 65 or older. Mr. El‑Khodr will thus potentially be eligible for the Program when he turns 65. The question is, if the jury members make an award for future costs of medication, should they take into account a reduction in the present value of Mr. El‑Khodr’s future medication costs due to coverage under the ODBP?

[4]               The Plaintiff argues that the jury should be instructed to disregard Mr. El‑Khodr’s potential coverage under the ODBP, as any benefit the Plaintiff may receive under the Program would be assignable to the Defendants under s. 267.8(12)(a)(v) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).

[5]               The Defendants argue that any benefit the Plaintiff might receive under the ODBP is not caught by s. 267.8(12)(a)(v) of the Act, because no money is paid to an individual covered under the ODBP. Rather, such an individual simply pays less at the pharmacy when purchasing prescriptions. As the Defendants would thus not be entitled to the assignment of any benefits the Plaintiff may receive under the ODBP, the Defendants posit that the jury should be instructed to consider a potential reduction in the award for future medication costs as a result of coverage under the ODBP. In other words, the Plaintiff’s potential future entitlement to coverage under the ODBP is properly considered by way of a contingency. If the jury believes there is a possibility that the Plaintiff will be covered by the ODBP in the future, they should quantify that possibility in the same way they are instructed to consider any negative contingency with respect to a future award of damages and reduce any amount awarded for future medication costs accordingly.

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Batuzskin and TD General  2015-04-17, Arbitration, Expenses, FSCO 4457.

There is no question that the Applicant’s success was mixed, but it was success nonetheless.  It is not diminished by the fact that the Applicant was not successful in claiming a Special Award. Up to the time of the hearing, almost six years after the accident, TD had paid the Applicant nothing in the way of income replacement benefits, housekeeping or attendant care benefits. As I noted in my decision, the Applicant was tardy in providing supporting documentation to TD.  However, by 2011 TD had been provided with enough medical evidence to support the Applicant’s claim that she was quite seriously impaired after the accident and required attendant care and housekeeping assistance for at least six months after the accident.

I find that the Applicant is entitled to her expenses as follows:

       i.          Fees

For pre-arbitration work, including mediation, as in the Bill of Costs

I have reduced the hourly rate billed for Christopher Jackson and Donna Wardell to the 2014 Legal Aid rate for Law Clerks of $30.83 per hour

$  2,390.71
From mediation to pre-arbitration.

Rate for Luke Hamer reduced to $110.00 per hour, rate for Christopher Jackson and Donna Wardell reduced as above

1,493.26

Work from pre-arbitration to arbitration – 3 to 1 ratio. 66 hours of preparation allowed. This comes to approximately 47% of the time billed.

Rates for Luke Hamer,Christopher Jackson, Donna Wardell  reduced as above, Jacob Murad and Sharon Rondaris reduced to Law Clerk rate as above

4,143.70The arbitration hearing:

Luke Hamer  22 hours at $110.00/hour

Christopher Jackson  20 hours at $30.83/hour

3,036.60

Post arbitration work

Luke Hamer  5 hours at $110.00/hour

Christopher Jackson  2 hours at $30.83/hour

611.66TOTAL$11,675.93

 
     ii.          Disbursements
 
Paid to the Minister of Finance for Application for Arbitration $    100.00

Paid to Fred Winch for a Vocational Assessment – $2,148.50

The maximum allowable under the Expense Regulation (section 5(3)) for preparation of a report by an expert is $1500. Mr. Winch’s report was brief and less than thorough.

500.00
Paid to Dr. Wudom for medical records 249.35
Paid to Rehab First re arbitration preparations and witness testimony – $1,615.75The maximum payable for preparation of an expert witness is $500 and $200 per hour for testimony. Ms. Smith testified for less than two hours. I will allow 2 hours for testimony and two for preparation at $100 per hour and one hour of travel time at the rate of $100 per hour 500.00
Paid to Dr. Wudom for witness testimony – $1,550.00Dr. Wudom testified for less than two hours. I will allow two hours for testimony and three hours of travel time at the rate of $200 per hour. $ 1,000.00
Paid to Fred Winch re arbitration preparations and witness testimony – $1,387.00Mr. Winch testified for less than one hour. I will allow one hour of testimony at the rate of $100 per hour and three hours of travel time at the rate of $100 per hour. 400.00
Paid to the Ministry of Finance for decoded OHIP summary      94.00

Paid to Dr. Friedlander of ProMed Evaluations regarding arbitration preparation $540.00

The maximum allowable under the Expense Regulation (section 5(3)) for preparation of a report by an expert is $1500.

500.00

Paid to Dr. Gozlan of ProMed Evaluations regarding arbitration preparation

300.00
Paid to Dr. Friedlander of ProMed regarding witness testimony – $3,370.00Dr. Friedlander testified less than 2 hours. I will allow 2 hours and three hours travel time at the rate of $200 per hour. 1,000.00
Paid to Jesse Hawley of Davis Martindale re witness testimony – $2,005.74I will allow 2 hours plus 2 hours travel time at $100 per hour. 400.00
Paid to Davis Martindale for supplemental letter — $2,401.25

The maximum allowable under the Expense Regulation (section 5(3)) for preparation of a report by an expert is $1500.

1,500.00

Paid to Dr. Gozlan of ProMed regarding witness testimony — $2,655.00

I will allow 2 hours for testimony  plus 3 hours of travel time at $200 per hour

1,000.00
Paid to staff for mileage 450.47
Paid for audio visual equipment rental 325.00
Paid for courier 242.89
Paid for document binding 100.00
Paid for photocopying 200.00
Paid for scanning       100.00

TOTAL

$8,961.71
 

I find that the Applicant is entitled to $11,675.93 in fees plus $8,961.71 in disbursements for a total of $20,637.64, plus HST where appropriate.

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Akbulat and RBC  [+] Arbitration, 2015-04-17, Reg 403/96. Motion FSCO 4460.

On March 7, 2013, AssessNet Inc. (“AssessNet”), a third party service provider, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended. AssessNet commenced this proceeding in the name of the insured person, Gulbiye Akbulut.  AssessNet is seeking payment of an alleged outstanding account ($53,021.62 plus interest) for completion of a catastrophic determination rebuttal report[2] that it prepared as part of Ms. Akbulut’s now-settled claim.   Although brought in her name, Ms. Akbulut did not sign the application.  There is also no evidence that AssessNet commenced this proceeding with the knowledge or consent of Ms. Akbulut.

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Tomec v. Magnat, 2015 ONSC 1928 (CanLII)

[34]      Further, the plaintiff asserts that the defendant’s witness, Dr. Clark, repeatedly and in the face of my clear instructions gave improper evidence, which resulted in considerable delay and expense. Further, defence counsel was aware, at least partly, of the change in Dr. Clark’s evidence before he testified; however, the Court was not made aware of it prior to Dr. Clark testifying. As a result, the plaintiff submits that Dr. Clark’s disbursements, totaling $11,450.04, should be eliminated or reduced.

[35]      I qualified Dr. Clark to give expert evidence. He testified that previously he has been qualified to give expert evidence in Superior Court. He either knows, or should know, the rules governing the nature of his testimony. His breaches of those rules resulted in a motion to strike the jury. His breaches caused considerable cost and delay to the trial.

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Conforti (Re), 2015 ONCA 268 (CanLII)

[1]         This appeal involves the impact of bankruptcy on a victim of a motor vehicle accident.

[2]         The appellant, Vincenzo Francesco Conforti, was permanently disabled as a result of a motor vehicle accident and is unable to continue to work in his previous employment as a truck driver. He claimed statutory accident benefits (“SABs”) and also commenced an action for damages. Two and a half years after the accident, he filed an assignment in bankruptcy. While bankrupt, he received financial assistance from the Ontario Ministry of Community and Social Services (the “Government”). He also received proceeds from the settlements of his SABs claim and his action. The appellant failed to disclose either of the settlements to his Trustee in Bankruptcy.

[13]      The settlement allocated the $275,000 as follows:

General damages (pain and suffering)

$120,000

Future loss of competitive advantage

$100,000

Future care

$7,000

Housekeeping

$15,000

Costs, disbursements, and HST

$33,000

In addition to the $33,000 allocated towards legal costs, disbursements and taxes, the appellant had to pay legal fees of $80,000. The settlement provided that no amount was being paid on account of past loss of income.[1]

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Karabas v Economical Mutual Insurance, 2015 ONSC 2115

B.   Has the plaintiff established an acceptable explanation for the delay?
[11]        The plaintiff acknowledges that there have been significant delays in this case.  The fact that three trial dates have been set and then adjourned is clear evidence of those delays.  The plaintiff has done very little to advance this case after filing the trial record four years ago.  After the matter was struck from the trial list, the plaintiff waited almost a year to bring a motion to put it back on the trial list.
[19]        The plaintiff has deliberately and inexplicably delayed this action for the stated purpose of joining this action with other another action, but has failed to take appropriate steps to even determine conclusively whether any such action will be brought.  For all of these reasons, I find that the plaintiff has not provided an acceptable explanation for the delay in this action.
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Recoskie v. Gutoskie, 2015 ONSC 1496 (CanLII)
[9]           The plaintiffs contend that the only reference to hourly rates is in the retainer agreement which provides for a substantial indemnity scale if the clients terminate the retainer. Furthermore the plaintiffs say that their counsel did not record her time, but estimated her time on the file at 300 hours. The plaintiffs contend that if the defendant disputes that estimation, then they should provide their own. It is unfortunate that Plaintiffs’ counsel has not kept reliable time records so as to avoid having to guess, particularly since the retainer with the clients anticipated that at some stage time records information might have been important had the clients terminated the retainer. In any event the defendant has provided both his recorded time information and copies of the solicitor client accounts. The defendant indicates total time of 100 hours for senior counsel and 60 hours for junior counsel for a total of 160. In the absence of time records, or a fuller description of the services, I have difficulty with doubling that time as an accurate estimation of plaintiffs counsel’s time. For the purpose of this exercise, and assuming that generally plaintiff’s counsel bear the burden of the work In a personal injury file, I will assume 250 hours to be reasonable. Taking the ‘corrected for inflation’ maximum partial indemnity rate from the costs grid at $348.15, (McLean v Knox[1]), a projected complete indemnity rate would be $633.00. I note that in McLean v Knox, plaintiff’s counsel, a senior experienced personal injury practitioner gave his normal hourly rate as $500. Applying that rate here would generate an estimated solicitor client bill at $125,000. A partial indemnity calculation would result in costs of $68,750.00 before considering the rule 57.01 factors.
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Syrodoyev v. Ramandi et al. , 2015 ONSC 1125 (CanLII),
[3]               The action involves a motor vehicle accident in which the minor plaintiff was injured in August, 2011.  The plaintiff was 8 years old at the time.  He is 11 years old today.  The plaintiff returned to school in September, 2011.  The plaintiff’s counsel advises that the plaintiff still walks with a limp and that he suffers sleep disorders from the accident.  State Farm is the accidents’ benefits insurer.  The other defendants were the driver and owner of the truck that hit the plaintiff.
[10]           This action has gone nowhere on the merits.  The plaintiff has produced no medical reports beyond contemporaneous treating and hospital records.  Discoveries have been deferred due to the plaintiff’s refusal to produce the minor and due to the inability of counsel to communicate effectively.  They write emails at each other.  They do not listen to each other and then cooperate on resolution of issues between them in an efficient, affordable and proportionate way.  Counsel do not have to capitulate.  But they do have to cooperate on scheduling matters in issue so as to move contested matters forward toward a resolution.   If counsel insist on taking difficult and tactical positions, then a court will resolve the issues and hopefully will award appropriate costs.  But, rather than sending lengthy, repetitive, positional emails and/or ignoring the other sides’ requests, counsel should talk and find a way to bring the issues to resolution either consensually or, if necessary, by coming to court.   Perhaps direction may be more readily available in Civil Practice Court than was previously the case as well.
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Handscomb v. TD Home and Auto Insurance, 2015 ONSC 975 (CanLII)

[8] In addition, the defendant and its financial advisor need to recognize the issue of proportionality as well.  There is no benefit to the defendant in incurring legal fees plus accounting fees equal to or greater than the difference between the two positions being investigated.  The breadth of inquiry must be narrowed to what is truly necessary so as to attend a brief meeting and be done with the issue.

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Wilson v Edward, 2015 ONSC 596 (CanLII), 

[2]              While a number of accounts were before the assessment officer, the only dispute that I am to deal with relates to an account dated October 17, 2009. This account was for services performed by Mr. Wilson for Ms. Edward relating to litigation with Allstate Insurance Company of Canada. The account in total, inclusive of fees and disbursements, was $336,626.13. After assessment, the account was reduced to $205,376.13.

[3]              Mr. Wilson says that the assessment officer was wrong in that determination.

Background

[4]              Ms. Edward retained Mr. Wilson with respect to her claim for motor vehicle accident benefits. He had taken over the file from an earlier lawyer. That lawyer had been able to obtain a proposed settlement from Allstate in the amount of $50,000 plus costs of $7,500 plus GST and disbursements. Ms. Edward responded to that offer advising “try to get more, otherwise we accept this offer”. That settlement did not proceed and Ms. Edward changed lawyers. After further extensive work carried out by Mr. Wilson, the matter was settled by Allstate paying $800,000 in addition to $252,000 for costs.

[5]              Following the settlement, Mr. Wilson delivered a summary account in the amount of $300,000 plus GST of $15,000, plus a disbursement account of $20,632.46, plus GST for a total account of $336,626.13. In his evidence before the assessment officer, Mr. Wilson said that one part of that account was a $100,000 premium for significant success on his part.

[28]           The only written document pertaining to fees was a May 5, 1997 letter sent to Ms. Edward’s spouse. At that time, Mr. Wilson was acting for both. In that letter he indicated that his fees were based on an hourly rate of $300.00 an hour, plus a correspondence fee of $20.00 per letter sent and $10.00 per letter received.

[29]           With respect to this issue, the assessment officer said:

While a client may have a right to rely on the general terms of a retainer to continue to apply until a new agreement is reached or, at least, notice of a change is given, it would be unreasonable to believe that an hourly rate will continue to apply for 12 ½ hours. It might be argues that it was an error in principle to allow increases in an hourly rate where there has been no notice, even to the extent of escalating rates being disclosed in a series of interim bills. However, it would be patently unreasonable to find any client so naïve as to believe that an applicable hourly rate would not escalate over the passage of 149 months.

[30]           The assessment officer went on, as set out above, to allow Mr. Wilson the rate of $500.00 per hour. In my view, he was not wrong in finding that to be a reasonable expectation of the client.

[31]           It is clear that Mr. Wilson did not provide Ms. Edward with any assessment as to what the premium might be. The assessment officer did find that “for outstanding success”, $50,000.00 was the appropriate amount.

[32]           That amount, to one surviving on public assistance, is a staggering premium. While it may be that Mr. Wilson would have a reasonable expectation of a $100,000 premium, that is not the test. If he expects such a premium, he has an obligation to bring that to the attention of the client, preferably in writing. For his own reasons, as set out in his evidence, he generally does not use a written retainer. That may be honourable, but it is bad business in these circumstances.

[33]           I do accept the evidence of Mr. Wilson that a premium was discussed; the evidence of Ms. Edward and her spouse cannot be relied upon.  Given that the assessment officer allowed for a premium, he too did not accept their evidence on this point. In light of the significant success, a premium of 10% of the recovery could be expected. See: Treyes v. Ontario Lottery and Gaming Corporation (2007) 49 C.P.C. (6th) 400 (Ont. S.C.J.). The premium is allowed at $100,000. Accordingly, the fee is determined to be $250,000.

[34]           The report and certificate of the assessment officer dated April 24, 2014 is otherwise confirmed.

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Vadivelu v. Sundaram, 2015 ONSC 331 (CanLII)

[12]           During the course of the litigation, 47 reports have been delivered to Mr. Sundaram. Many of these reports reveal that Mr. Vadivelu’s psychiatric or psychological condition was of very serious concern. Dr. Corbin’s Report should have come as no surprise. In my opinion, if Mr. Sundaram had any reason to doubt the various medical assessments about Mr. Vadivelu’s psychological state being delivered during the course of the litigation, Mr. Sundaram knew or ought to have known long before Dr. Corbin’s Report that a defence medical examination would be prudent and necessary.

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St. Jean v. Armstrong, 2015 ONSC 13 (CanLII)

[11]           Counsel is seeking costs of one-third of the damages awarded in the AB claim and the tort claim pursuant to the contingency fee agreements signed by Claude Pothier on August 1, 2006, and January 30, 2014. This latter agreement expands the original agreement by explaining that the fees on the tort action and the AB claim would be subject to the one-third amount. This results in fees of $466,000, HST of $37,280 and disbursements of $84,510 for a total of $587,790.

 [23]           I have no hesitation in approving the awards made, both on the tort action and the AB claim. What has concerned me, however, is the amount of fees being suggested by the law firm.

[24]           I appreciate that this settlement came about as a result of a global resolution of the tort action and the AB claim. However, this does not mean that I am obliged to award fees on the global resolution.

[34]            Considering that these dockets were reconstructed and not made contemporaneously at the time the work was done, little weight can be placed on the estimate of the time involved.

[52]           The sum of $280,500 is sought for legal fees in connection with the AB claim pursuant to the contingency fee agreement. Having considered all of the evidence and the legal principles, I conclude that there should be a reduction on the fees proposed on the AB claim. In my view, counsel has not succeeded in proving that the contingency fee agreement was fair and reasonable under the circumstances. Accordingly, fees for the AB claim will be fixed at $170,000, inclusive of HST, and fees for the tort action will be fixed at $183,333, inclusive of HST, for a total of $353,333.

[53]           Disbursements are fixed at $84,510, inclusive of HST.

Sealing Order

[55]           Wallbridge, Wallbridge also sought an order sealing the notice of motion, the supporting affidavits of Mr. Wallbridge and Mr. Pothier, the minutes of settlement and the judgment. The basis of such a request is solicitor/client privilege and that these matters ought not to be disclosed to the defendants nor to the public.

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Hodge v. Neinstein, 2014 ONSC 6366 (CanLII)

[32]           Ms. Hodge submits that a substantial amount of the Respondents’ time and effort was directed to attacking her credibility and Class Counsel’s alleged failure to take other courses of action. 

[33]           Ms. Hodge submits that it is beyond the realm of reasonableness to expect that Respondents’ counsel would spend 210 hours on preparation and attendance for the quashing summonses motion, which lasted approximately one hour and was settled.  She suggests that a reasonable expectation would be approximately $5,000 to $8,000 in legal fees and not the $84,829.50 claimed.

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2014-08-08 Yetman v. Marzec, 2014 ONSC 4624 (CanLII)

[3]               The Plaintiff addresses pre-judgment interest although that was not specifically discussed on the record. The Statutory Third Party has not addressed that issue in response. Entitlement to claimed pre-judgment interest pursuant to the Courts of Justice Act is hardly controversial. Calculated for general damages from the notice of claim August 8, 2007, the Plaintiff seeks $35,346.00. As for pre-judgment interest on the loss of income award at 0.5% annually, the Plaintiff proposes a rate of 1.713% calculated at $$2,497.55, to reflect that income loss is a “running loss” not incurred fully on the date of the collision.

[4]               Once again putting all its reliance on its insurance limits position, the Statutory Third Party adopts a passive resistance approach that does not assist the court in determining why the Plaintiff’s position or calculation is unfounded. Pursuant to Insurance Act R.S.O. 1990 section 258, the basis for the Statutory Third Party’s full participation in the litigation and trial, the Statutory Third Party could have argued that the Plaintiff’s pre-judgment interest position is wrong. In the absence of such dispute, and having no intention to check the Plaintiff’s counting or arithmetic myself, I find that the pre-judgment interest owed is as claimed: $35,346.00 for general damages and $$2,497.55 on the loss of income award.

[5]               As to costs, the Plaintiff has filed a brief with usual documentary backup supporting a claim for costs on a partial indemnity basis to trial and a substantial indemnity basis from preparation of the trial record through trial totalling $338,713.20, an averaging of staff time to add $34,631.89, then HST of $48,534.86 for total fees of $421,879.95. Disbursements of $113,050.56 charged to the Plaintiff were claimed and the Plaintiff’s travel costs to attend mediation and trial totalling $5,539.72.

[15]           It would be unjust to allow the Statutory Third Party full litigation rights under section 258 of The Insurance Act that generated the need for a trial while also excusing them from cost exposure for that trial.

16]           Further, in the conduct of the trial, positions were advanced by the Statutory Third Party in relation to liability that had no evidentiary support, thereby prolonging the length and complexity of the trial.

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Magnone v. Dawson, 2014 ONSC 3548 (CanLII) 2014-06-16 (Docket: 08-00662)

[21]           The Defendant filed a Bill of Costs indicating fees of $127,414 as well as disbursements of $70,781 (both figures including tax), for a total of $198,195.  That amount would constitute full indemnity costs, given Defendant’s counsel clarification that the fee amount was the actual amount charged to the client.  The fee amount should therefore be reduced in order to arrive at an appropriate figure for partial indemnity costs.

[23]           The Plaintiffs also disputed a number of the disbursements claimed, the most significant being:  $13,602 for an expert report from a psychologist relating to Vanessa Magnone; a total of $9,980 relating to surveillance that was ultimately not used at trial; and $7,325 for consultations with economic loss claim expert who was not called as a witness.

[28]           Taking the matters outlined above into account, I fix the Defendants costs on a partial indemnity basis at $100,000 including disbursements and costs, payable by the Plaintiffs within 30 days.

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2014-05-01 Mullin v. Allstate, 2014 ONSC 2709 (CanLII)

[9]               Keeping these principles in mind, it is apparent that none of the parties would have expected a payment of some $63,000 for defending two rather unexceptional motions.  The plaintiff recognized this by serving an offer to settle of $33,000 all inclusive.

[10]           The plaintiff definitely had a lot to risk but I doubt that the dismissal of the action would have been the end result.  The court has jurisdiction to order costs and defer payment of such costs.  Although a dismissal of the action may result in extreme circumstances, I do not find that those extremes existed in the present action.

[11]           No doubt there was considerable work conducted by the plaintiff’s legal team but the defendants are not obligated to pay full indemnity.  Their only obligation is to pay an amount that is “fair and reasonable.”  Unfortunately, the history of this action does not confirm a “fair and reasonable approach” by the parties as they have seen to wage a war of attrition.  Such attitudes do not advance the litigation and as a result, the parties incur considerable costs and achieve very little results.

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2014-04-28 Mayer et al. v. 1474479 Ontario Inc. et al., 2014 ONSC 2622 (CanLII)

[48]      I have similar concerns about excess, in relation to the quantum of disbursements being claimed by the plaintiffs.

[49]      In that regard, our courts have confirmed that the principle of proportionality applies equally to disbursements, and that an expert cannot simply charge what he or she considers appropriate and then expect through counsel that such fee will be deemed acceptable by the court.  In the long term, simple acceptance of disbursements which, on their face, appear to be extravagant and excessive, will encourage experts to charge excessive fees, and enhance the risk that litigation will be placed beyond  the reach of most people seeking or needing access to our courts.  See, for example, Roberts v. Morana[1997] O.J. No. 4999 (Gen.Div.), at paragraphs 30-31, and Hamfler v. 1682787 Ontario Inc., [2011] O.J. No. 6190 (S.C.J.), at paragraphs 8-18.

[50]      As suggested by Justice Edwards in the latter case, at paragraph 17, determination of whether an expert’s fee is reasonable or excessive, (warranting a reduction in recovery), may be assisted by focusing on a number of considerations, including the following:

•         Whether an expert’s evidence made a contribution to the case, and was relevant to the issues.

•         Whether the evidence was of marginal value, or crucial to the ultimate outcome at trial.

•         Whether the cost of the expert was disproportionate to the economic value of the issue at risk.

•         Whether the evidence of an expert was duplicated by other experts called by the same party; (e.g., whether the expert’s opinion was “overkill”, or provided necessary tools to properly conduct its assessment of a material issue).

[51]      Although Justice Edwards suggested consideration of such factors in cases decided by a jury, (as in Roberts v. Morana, supra), it seems to me, as noted below in my consideration of Rule 57.01(1)(b), that definite assessments and conclusions in that regard are complicated by inherent speculation as to the value a jury may or may not have placed on certain evidence.

[52]      Having said that:

•         I find it quite difficult to accept that the relatively brief appearance of the plaintiffs’ expert epidemiologist Dr Freeman, said to have necessitated disbursements of no less than $26,398.27, realistically could have added much to the outcome of these proceedings.  Dr Freeman was called to support the plaintiffs’ allegation that Ms Mayer’s objectively verifiable disc herniation and associated problems were caused by the underlying accident; an assertion which, if accepted, no doubt would have had a considerable impact on the damages awarded in this case.  However, the relatively modest damages awarded by the jury strongly suggest that, in effectively rejecting the plaintiffs’ causation argument in that regard, the jury placed very little value on Dr Freeman’s evidence.

•         The same might be said, at least to some extent, of certain causation evidence offered by Dr Delaney, (whose disbursements totaled no less than $20,556.93).  However, I think Dr Delaney’s fees were more justifiable, insofar as much of her testimony was directed towards broader issues, including the relationship between the accident and Ms Mayer’s other complaints, in respect of which the jury must have accepted at least some of the plaintiffs’ causation arguments. 

•         I also agree with the defendants that there was a certain degree of overlap and overkill involved in the plaintiffs calling and relying upon the expert evidence of two occupational therapists:  Ms Musgrave, (called upon primarily to provide her expert opinion as an occupational therapist), and Ms Blazkowski, (called upon primarily to provide expert opinion as a certified life care planner, in relation to future care costs, but who, in her dual capacity as an expert occupational therapist, also was asked to opine on various matters relating to that separate discipline, such as the ability of Ms Mayer to lift her disabled daughter without significantly straining her back in a manner that would not have been related to the underlying motor vehicle accident).  In the result, I think there was indeed duplication, to some extent, between the disbursements incurred in relation to Ms Musgrave, ($11,698.88), and those incurred in relation to Ms Blazkowski, ($7,152.29).  

•         As noted by the defendants, one might also question whether the evidence of Ms Musgrave, Ms Blazkowski, and the corresponding calculations of the plaintiffs’ economic loss expert Mr Krofchick, (whose fees totaled $30,722.25), added much to the proceedings, or was considered valuable by the jury, given the comparatively modest amounts awarded for future damages and pecuniary loss.   

[53]      Again, I find such concerns about the plaintiffs’ claimed disbursements very difficult to quantify with precision, given the lack of detail concerning the work done by each expert, and the inherent nature of making determinations about the value of such disbursements in the context of a jury trial.

[54]      However, such concerns reinforce my general view that the total disbursements being claimed by the plaintiffs, (which again, standing on their own, exceed the damages recovered in the litigation), offend the general principle of proportionality and once again suggest excess.

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A Calgary doctor suing a personal injury lawyer because the doc didn’t get 50% of the referral $$$ A lawsuit claiming a doctor was not paid for referring patients to an injury lawyer is raising questions.   http://www.cbc.ca/player/News/Canada/Calgary/ID/2444924182/

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2014-03-03 Mikolic v. Tanguay and Albano, 2014 ONSC 1369 (CanLII), http://canlii.ca/t/g62b

21]        The amount for fees suggested by the defence of $68,851.69 from the date of its offer to the end of the trial is reasonable given the modest hourly rates being charged and the time expended. I do find some of the disbursements for the fees charged for attendance only by some of the defence doctors to be unreasonable given the time they were actually required in court. For example, I have no information before me to justify a charge by Dr. Axelrod of $7975.00, Dr. Waisman at $6554.00, or Mr. Kodsi, the engineer, at $4108.00. I set the defence costs at $95,000.00 inclusive of fees, taxes and disbursements as being fair and reasonable under all the circumstances.

[22]         Plaintiff’s counsel submits that he incurred costs from the start of the action to the date of the defence offer in the amount of $92,856.00 inclusive of taxes and disbursements. Disbursements of almost $20,000.00 are claimed for experts who never testified and whose conclusions were never agreed to by the defence. Approximately $25,000.00 is claimed as costs for including the OEF insurance carrier. Such an amount is excessive as is the photocopying bill. I conclude that $65,000.00 inclusive of taxes and disbursements is fair and reasonable for the plaintiff’s partial indemnity costs up to the date of the defence offer.

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S.M. and Intact Insurance  [+]  Arbitration, 2013-11-08, Reg 403/96.

Assessments of Attendant Care Needs

There have been numerous assessments of the Applicant’s need for attendant care. Each assessment has resulted in a Form 1 being completed, together with a narrative report. For ease of reference, these documents are summarized in the chart below.

Date of Form 1

Author

Exhibit No.

Monthly Amount($)

June 25, 2008

Christina Dorcas

Ex. 3, Tabs 25 and 31 6,510.51

October 22, 2008

Elaine Marchand Shepherd

Ex. 3, Tabs 26 and 32

5,012.03

April 7, 2009

Susan Harcourt

Ex. 3, Tabs 27 and 33

5,165.35  [5]

September 14, 2009

Christina Dorcas

Ex. 3, Tabs 28 and 34

304.71

December 14, 2009

Christina Dorcas

Ex. 3, Tabs 29 and 36

1,884.96

November 6, 2012

Pam Smith

Ex. 3, Tabs 30 and 38

6,427.31

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2013-12-04 Blake v. Dominion of Canada General Insurance Co., 2013 ONSC 7445 (CanLII), http://canlii.ca/t/g26pk

[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 10th, 2010 appear reasonable and are fixed at $794.88.

[17]      Those disbursements post June 10th, 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 1st, 2010 has reduced the photocopying to $2000.00 and the preparation, attendance and witness relating to Dr. Dost to that of $12,000.

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 Sadozai and Aviva Canada  [+]  Arbitration, 2014-02-14

Disbursements

The Insurer is seeking reimbursement for the following disbursements:

Description
Amount ($)
Fax
20.50
Photocopies and printing
343.66
Courier
79.11
Conduct money*
159.00
Official Examiner Fees
916.00
Postage
0.63
Mileage
36.96
Expert Testimony- Rob Seaton
1,573.00
Expert Testimony – Sam Kodsi
5,003.75
Subtotal
8,132.61
HST
1,036.57
Total
9,169.18
* not subject to HST

The Applicant has not taken any position with respect to the specific disbursements claimed, except to object to: (1) having to pay for a report from Robert Seaton (as it was commissioned by another insurer); and (2) having to compensate the Insurer for having two experts testify when, according to the Applicant, one would have sufficed.

A party to an arbitration proceeding at FSCO is only permitted to seek compensation for expenses of a type and in an amount permitted under the Expense Regulation.

As for the disbursements related to faxes, copying, courier, conduct money, postage and mileage, these are all types of disbursements that can be permitted under the Expense Regulation and the Applicant has not challenged the amounts being claimed.  I will therefore permit these disbursements (a total of approximately $640.00).

With respect to the cost ($916.00) of having a verbatim reporter attend the hearing, however, it is not an expense that is specifically permitted under the Expense Regulation and there is case law from FSCO to the effect that such expenses generally cannot be claimed as a disbursement.[4]  I will not allow this claim.

With respect to experts, the maximum amounts that may be claimed under the Expense Regulation are:  $1,500.00 for preparation of a report; $200.00 per hour for attendance at a hearing (up to $1,600.00 per day); and $500.00 for preparation for a hearing at which the expert actually testifies.

According to the invoice from Robert Seaton’s company (Collision Analysis & Reconstruction), Robert Seaton spent two hours preparing for the hearing and charged $500.00 for that.  My records indicate that Mr. Seaton appeared before me from about 10:00 a.m. until 11:30 a.m. on April 16, 2013; at $200.00 per hour, this would represent $300.00 for his testimony.  As for his travel to and from Orillia, there is no provision for reimbursement of his travel time but under Tariff A to the Rules of Civil Procedure, Mr. Seaton would be entitled to reimbursement at $0.24 per kilometre (in this case, 274 kms.) for a total of $65.76.  Aviva is not claiming any amount related to the preparation of the report of Mr. Seaton. Thus, in total, under the Expense Regulation, a reasonable amount for Mr. Seaton’s time to prepare for and testify at the hearing would be about $865.76.

The invoice from Kodsi Engineering dated April 17, 2013 contains almost no particulars and is for a total amount of $5,003.75 (plus HST). I can only assume that this is the charge for preparing his report, preparing to testify and testifying from 1:00 to 2:00 p.m. on April 16, 2013.  The most that would be permitted for such services under the Expense Regulation would be $1,500.00 for the report, $500.00 for preparation and $200.00 for his testimony.  Therefore, if I were to take the most generous possible view of this claim, I could, at most, allow $2,200.00 (plus HST).

Thus, of the disbursements claimed on behalf of Aviva, I find that a total of about $3,700.00 (exclusive of HST) would be reasonably permitted under the Expense Regulation.

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