Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda Lamoureux, Executive Chair

Date: March 17, 2017

File: 16-000433/AABS 16-000435/AABS

Case Name: 16-000433/AABS v. Wawanesa Mutual Insurance Company 16-000435/AABS. v. Wawanesa Mutual Insurance Company

Written Submissions By: For the applicant: Elena Steinberg For the respondent: Darrell March

1On January 30, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued decisions in two related matters. In both matters, the Tribunal issued a cost order of $250 against the respondent, Wawanesa Mutual Insurance Company (the “respondent”).

2On February 14, 2017, the respondent requested a reconsideration of both decisions. The basis for the respondent’s request is that the parties settled their respective disputes before the Tribunal issued its decisions. Accordingly, the respondent asks that the Tribunal’s costs orders be cancelled.

3For the sake of convenience, I will deal with both requests together. In doing so, and for the following reasons, I grant the respondent’s requests.

The Facts

4On February 28, 2014, the applicants were injured in a motor vehicle accident. The applicants and respondent disagreed over the benefits payable under the Statutory Accident Benefits Schedule – Effective September 1, 2010. As a result, the applicants applied to the Tribunal.

5At all relevant times, the same counsel represented the parties: Ms. Elena Steinberg for the applicants and Mr. Darrell March for the respondent. Since both matters were related, counsel addressed them together, for example by agreeing to schedule case conferences on the same day.

6One case conference was on September 22, 2016. After this case conference, the Tribunal issued an order on October 19, 2016 in both matters. These orders required the parties to make certain disclosure by October 25, 2016 and scheduled the cases for hearing on January 12, 2017.

7The respondent did not comply. In response, Ms. Steinberg wrote to the Tribunal seeking a further disclosure order and requesting that the deadline in the October 19, 2016 orders for the applicants’ written submissions be extended. Ms. Steinberg also requested an order for costs.

8On November 2, 2016, the Tribunal issued a further order in both matters requiring the respondent to disclose certain documents by November 4, 2016. The Tribunal directed Ms. Steinberg to advise when such disclosure was made and, if necessary, request an extension of the applicants’ deadline for submissions at that time. The Tribunal also invited the parties to make written submissions on the issue of costs by November 9, 2016.

9Once again, the respondent failed to comply. Once again, Ms. Steinberg advised the Tribunal of this failure. In her correspondence of November 7, 2016, she reiterated her request that the deadline for the applicants’ written submissions be extended, and, given the respondent’s repeated non-compliance with the Tribunal’s orders, asked that the applicants each be granted $1000 in costs. Mr. March made brief submissions in response.

10On November 15, 2016, the Tribunal denied Ms. Steinberg’s request for an extension, reserving the issue for the hearing adjudicator. It also notified the parties that, having received their positions, they would receive the Tribunal’s decision on the issue of costs “in the next few weeks.”

11Both matters, it appears, then settled. This is discussed further below.

12On January 9, 2017, both applicants filed a Notice of Withdrawal, ending their applications. The Tribunal responded to these Notices in the usual course: the following day, it wrote to the applicants, notifying them that it had closed their files.

13On January 30, 2017, the Tribunal issued its cost decisions. That same day, Mr. March notified the Tribunal that the matters had settled on November 24, 2016 on a “full and final basis,” with settlement funds having been provided to the applicants. He therefore requested that the Tribunal’s cost orders be vacated.

14On February 7, 2017, the Tribunal wrote to Mr. March, notifying him that the Tribunal could not vacate or cancel its orders in the absence of a request for reconsideration. Further to this direction, the respondent filed the within requests.

15In his letter of February 15, 2017 arguing these requests, Mr. March provides as follows:

On November 24, 2016 both parties reached a settlement in this matter. In an e-mail the same day, November 24, 2016, Ms. Steinberg conformed [sic] “We will advise the case administrator at LAT that the matters have settled subject to the closing documents being signed and the expiry of the 48 hour cooling off period. Once we are in receipt of the settlement funds we will formally withdraw our applications.”

16The Tribunal wanted the benefit of Ms. Steinberg’s position. For that reason, on February 22, 2017, counsel for the Tribunal wrote to Ms. Steinberg, asking her to address “whether the parties indeed settled these dispute, including the applicants’ entitlement to costs.” Ms. Steinberg could have confirmed or denied the settlement. She did neither. Instead, she wrote to say that the applicants “will not be making any responding submissions.”

Reasons

17Based on these facts, I can only conclude that that the parties indeed settled their respective disputes, including the issue of costs, before the Tribunal’s decisions were issued.

18As mentioned above, both applicants filed a Notice of Withdrawal on January 9, 2017. A Notice of Withdrawal formally ends an application to the Tribunal. As the Notice’s form makes clear to those completing it, “the Tribunal file will be closed” in response. Neither the Notices nor the accompanying correspondence mentioned the outstanding costs issue. Thus, in filing their Notices, the applicants ostensibly intended to relinquish any rights associated with their applications.

19The applicants were also silent in response to the Tribunal’s correspondence of January 10, 2017 in which it confirmed receipt of their Notices and that it closed their files. Again, Ms. Steinberg offered no clarification about the outstanding costs issue, nor did she make any similar suggestion that the withdrawals do not apply to any pending cost orders.

20This same silence on January 30, 2017 is also telling. After the Tribunal issued its decisions on that day, Mr. March immediately notified the Tribunal, copying Ms. Steinberg, that these matters had been settled on a “full and final basis.” For that reason, he requested that the Tribunal’s cost orders be vacated. Ms. Steinberg offered no response. If she believed at that time that her clients were entitled to the benefit of the Tribunal’s costs orders, one would reasonably have expected her, including her clients, to say as much. She did not.

21Nor did she offer any substantive response to these requests for reconsideration. With these requests in hand, along with the Tribunal’s invitation to speak on the issue, Ms. Steinberg simply offered that the applicants “will not be making any responding submissions.”

22It is clear the parties intended to settle their differences before the Tribunal’s decisions were issued. It was for that reason that the applicants withdrew their applications, thereby terminating the proceedings before the Tribunal. The Tribunal was unaware of this settlement when it rendered its decisions. Mr. March’s correspondence of February 15, 2017 appears to explain why: he relied on Ms. Steinberg to inform the LAT of the parties’ settlements. This reliance was apparently misplaced. Instead of explaining this development to the Tribunal, Ms. Steinberg simply filed her clients’ Notice of Withdrawal. Unaware of what had transpired, the Tribunal then issued its decisions.

23Ms Steinberg’s conduct in this matter is concerning. The Tribunal must be able to rely on counsel to act both responsibly and with integrity. Ms. Steinberg’s failure to clarify the record in this proceeding has resulted in a waste of the Tribunal’s time and resources.

24In the circumstances, it would be unfair and unjust to allow the applicants to continue to benefit from the Tribunal’s costs orders. I am satisfied that that the threshold provided in Rule 18.2(b) has been met.

Conclusion

25I therefore grant the respondent’s requests for reconsideration and hereby cancel the Tribunal’s orders in the within matters.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario