C. J. v. The Personal Insurance Company of Canada, 2017 CanLII 56677

Date: 2017-07-31

Tribunal File Number: 16-002815/AABS

Case Name: 16-002815 v The Personal Insurance Company of Canada

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

C. J.

Applicant

and

The Personal Insurance Company of Canada

Respondent

DECISION ON COSTS

ADJUDICATOR: Rebecca Hines

APPEARANCES:

Counsel for the Applicant: Andrew Kerr, Counsel

Counsel for the Respondent: Kathleen Mertes, Counsel

Written Hearing: April 20, 2017

OVERVIEW:

1The applicant was injured in a motor vehicle accident on February 24, 2014. He applied for accident benefits to The Personal Insurance Company of Canada (“Personal”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). Personal denied his claim.

2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services.

3A case conference was held on December 14, 2016. A preliminary hearing was scheduled for March 2, 2017. The issue for this hearing is to determine whether the applicant is time barred from proceeding with his claim for an income replacement benefit. A telephone hearing was also scheduled for March 16, 2017 with respect to the applicant’s claim for medical benefits and examination expenses.

4The applicant failed to adhere to the filing deadlines prescribed for the above noted hearings. As a result, the respondent is now seeking an order for costs.

ISSUE:

5Is the respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal’s Rules of Practice and Procedure (“Rule 19”)?

RESULT:

6The respondent is not entitled to costs.

BACKGROUND:

7Following the December 14, 2016 case conference, the applicant was ordered to file submissions and evidence on both a written preliminary hearing scheduled for March 2, 2017, and a teleconference / hybrid hearing scheduled to take place by teleconference on March 16, 2016.

8As per the Tribunal’s Order dated December 20, 2016, the applicant was to file evidence and submissions on both hearings by February 16, 2017. The applicant did not file submissions and evidence and did not notify the Tribunal to request an extension until March 14, 2017, 26 days after the deadline.

9On March 14, 2017, applicant’s counsel wrote to the Tribunal and advised he had been unwell and was unable to prepare submissions by the dates indicated in the order. Applicant’s counsel also submitted a Report of Mediator (ROM) on the preliminary hearing as evidence to the Tribunal, a copy of which had only recently been provided to the respondent. The ROM is evidence in support of the preliminary issue in respect of whether the applicant is time barred.

10The respondent objected to the applicant’s request for an extension to provide his submissions. The respondent also objected to the admissibility of the ROM. The respondent formally requested an order for costs for the applicant’s failure to advise the Tribunal of his medical condition in a timely manner and subsequent request for an extension to file submissions.

11On March 16, 2017, the applicant’s counsel participated in the teleconference / hybrid hearing and advised that he was unable to proceed and requested an adjournment. The Tribunal requested that applicant’s counsel submit a doctor’s note confirming his illness. The adjournment was granted for this hearing and an order was issued outlining the following:

i. Applicant’s counsel was to file submissions and evidence in respect of the teleconference hearing by April 5, 2017;

ii. New deadlines were set for filing submissions and evidence on the applicant’s request for an extension on the preliminary hearing; and

iii. Submissions with respect to costs regarding missed deadlines and delays on both the preliminary hearing and hearing on the substantive issues.

12The applicant did not file the ordered submissions and evidence by April 5, 2017 date.

13On April 7, 2017, a resumption of the case conference was held to discuss a change in the order for submissions to be filed. On April 7, 2017, applicant’s counsel requested another extension for the April 5, 2017 deadline which had already passed. Applicant’s counsel cited workload and illness for the reasons he missed the second deadline. The Tribunal granted the extension. Applicant’s counsel agreed to provide submissions and evidence on the costs and teleconference/ hybrid hearing by April 13, 2017. He has since complied.

THE LAW, SUBMISSIONS AND ANALYSIS:

14Rule 19.1 states:

a. “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.”

15Under s. 17.1 of the Statutory Powers and Procedure Acta Tribunal may “order a party to pay all or part of another’s party’s costs in a proceeding” if the “conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith…”

16The respondent filed submissions on costs seeking $3,308.48 from the applicant for failing to comply with the Tribunal’s orders. The respondent argues that the applicant’s counsel’s conduct meets the test for being “unreasonable” as per Rule 19, which has resulted in it incurring additional costs.

17The respondent contends the medical note provided by applicant’s counsel was insufficient as it failed to provide a medical opinion to explain why counsel could not make a phone call or email the Tribunal, or give instructions to an assistant to explain he was having medical issues and request an adjournment. The respondent argues that despite illness it was unreasonable for counsel to fail to advise the Tribunal and/or request an extension until 26 days after the first deadline was missed.

18The respondent quoted LAT decision B.F. v. Wawanesa Mutual Insurance Company, 2017 CanLII 9821 (ON LAT) as authority. In this case, the Adjudicator awarded costs against the respondent for failing to comply with the Tribunal’s production orders twice and for not providing a reasonable explanation until a request had been made for costs. The Adjudicator found the representative’s conduct was unreasonable as it was disrespectful of the Tribunal’s process and interfered with the Tribunal’s ability to run an efficient hearing.

19Applicant’s counsel submits that the nature of his illness has impeded his ability to comply with the Tribunal’s orders. Applicant’s counsel argues that the intention of the legislation is that an award of costs be granted in extreme circumstances. He acknowledges missing a number of deadlines and was delayed in notifying the Tribunal. Furthermore, he indicates his illness has been corroborated in the doctor’s note submitted. Therefore, his actions cannot be defined as unreasonable because his actions were not deliberate or a contemptuous course of action, as the term “unreasonable” suggests.

20Applicant’s counsel argues that B.F. v. Wawanesa is distinguishable as the degree of contempt the representative showed for the process could be described as unreasonable. In that case, the respondent failed to comply with the Tribunal’s orders regarding productions twice, failed to respond to the applicant’s inquiries regarding them until the request for costs was made. The only response the respondent made in that case was in reply to the applicant’s request for costs which gave no explanation for the failure to comply with the orders. This element of contempt or disrespect influenced the Adjudicator to make the award.

21The applicant submits that his non-compliance for the March 2, 2017 preliminary hearing did not impact the process because the adjudicator had not done any work as of that written hearing date, such as review the submissions or make a decision. Subsequently, the applicant’s counsel acknowledged that his non-compliance with the order had an impact on the process and he is currently taking steps to address his challenges.

22Based on the history of these proceedings, I agree with the respondent that applicant’s counsel’s behaviour has been unreasonable. Further, I agree that the respondent has been prejudiced by the lack of disclosure of the report of mediator and has incurred expenses as a result. However, I also accept that the applicant’s counsel has been suffering from serious illness that has impaired his ability to do his job. I find this case distinguishable from BF v. Wawanesa as in this case there is a medical reason to justify the behaviour and not a blatant disregard and disrespect for the process. I find the medical note provided by the applicant’s counsel satisfactory in confirming same.

23In the present case, the applicant’s representative has confessed to having an illness that has had a serious impact on his ability to do his job. Further, he is seeking assistance to deal with this illness. Based on the circumstances of this case, I do not find that costs are warranted. While the Tribunal and the respondent have been inconvenienced, I do not feel that making such an order would be in line with procedural fairness and natural justice. Therefore, the respondent’s request for an order for costs is dismissed.