Tribunal File Number: 16-000448/AABS
Case Name 16-000448 v State Farm Mutual Automobile Insurance Company
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.
And in the matter of a motion brought by the respondent seeking a dismissal of the Application and for costs.
Between:
Applicant
Applicant
and
State Farm Mutual Automobile Insurance Company
Respondent
DECISION
Adjudicator: Deborah Neilson, Adjudicator
Appearances:
Applicant: Applicant
Representative for the Respondent: Jeff Kope
Counsel for the Respondent: Trisha McEvoy
Held by Teleconference: June 12, 2017
INTRODUCTION
[1]. On May 3, 2017, the respondent brought a motion for a dismissal without a hearing on the basis that this application has been abandoned within the meaning of Rule 3.4(d) of the Licence Appeal Tribunal Rules of Practice and Procedure (the “LAT Rules”), as well as for costs under Rule 19.1 of the LAT Rules on the basis that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith. I decline to dismiss the application or award costs at this time. These are the reasons for my decision.
BACKGROUND
[2]. The applicant was injured in an automobile accident on January 12, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).
[3]. On May 26, 2016, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) claiming entitlement to medical benefits for psychological therapy services and for non-earner benefits.
[4]. Case conferences were conducted by me on October 4, 2016 and November 18, 2016. I previously ordered, on the parties’ consent, that this application and the application in Tribunal File Number 16-00449/AABS be heard together. The parties participated in written preliminary issue hearings in both files. The preliminary issue decision in this file was released on March 9, 2017. The preliminary issue decision in Tribunal File Number 16-000449/AABS was issued on April 11, 2017.
[5]. A resumption of the case conference took place on March 10, 2017 and again on March 24, 2017 in anticipation that the preliminary issues in both files would be determined. By March 24, 2017, the decision on the preliminary issue in Tribunal File Number 16-000449/AABS was still pending, and the applicant advised that he intended to seek a reconsideration of the preliminary issue decision in this file. Another resumption of the case conference was scheduled for May 12, 2017 by teleconference in order to schedule a hearing date on the following remaining substantive issue, which is common to both appeals:
Is the applicant entitled to receive a medical benefit in the amount of $1,346.49 for psychological services provided by Dr. Prendergrast, psychologist, alleged to be recommended in a treatment plan of an unknown date?
[6]. The applicant did not attend the May 12, 2017 case conference. The Case Management Officer was unable to contact him, but spoke with a person who identified himself as the applicant’s brother. He advised the Tribunal that the applicant would not be participating in the case conference.
[7]. At the same May 12, 2017 case conference, the respondent stated that it was bringing forward a motion for a dismissal without a hearing and for costs. Accordingly, this motion was scheduled to be heard by telephone on June 12, 2017. Subject to the outcome of this motion, a resumption of the case conference was also scheduled for the same date, June 12, 2017, by teleconference.
[8]. The applicant was notified of the motion hearing scheduled for June 12, 2017 by a notice of motion served by the respondent on May 23, 2017, and by notice from the Tribunal sent by email to the applicant on May 29, 2017. The applicant served and filed his responding motion record consisting of submissions and an affidavit.
[9]. The applicant stated in his affidavit that he has no intention of abandoning his claim and that the reason he did not attend at the case conference on May 12, 2017 was because he was suffering from a mental breakdown.
ANALYSIS
A. Dismissal of the Appeal
[10]. The respondent admits that, in light of the fact that the applicant attended this motion’s hearing and filed materials stating he has no intention of abandoning his claim, it is difficult for the respondent to maintain its position that the applicant has abandoned his appeal. The respondent, however, was not prepared to abandon its argument because no assurance was provided by the applicant that he will simply not attend at a scheduled hearing or case conference.
[11]. The respondent relies on the fact that the applicant did not attend at the case conference on May 12, 2017 and LAT Rule 3.4(d), which provides that the Tribunal may dismiss an appeal without a hearing if the party filing the appeal has abandoned the proceeding. The respondent also relies on LAT Rule 14.6, which requires a party to attend the case conference and, if a party is unable to attend, requires the party to notify and obtain permission from the Tribunal for a representative of the party to attend on his behalf. The respondent also relies on the fact that the applicant did not give advance notice of his absence, did not seek an adjournment or arrange to have someone attend on his behalf in accordance with LAT Rule 14.6.
[12]. Written submissions and affidavit evidence were filed by the applicant prior to the motion’s hearing in support of the reason for the applicant’s failure to attend the case conference. The applicant’s evidence was that he was suffering from a mental breakdown and was too ill to attend the case conference. His evidence was that he had no intention of abandoning his claim.
[13]. I find that the evidence supports, on a balance of probabilities, that the applicant has not abandoned his appeal. The fact that the applicant submitted materials in response to the motion to dismiss and the fact that he attended at the motion hearing both support the applicant’s affidavit evidence that he has no intention of abandoning his claim. I find that while failure to attend one case conference out of five without permission does not comply with the LAT Rules, it does not constitute abandonment of the applicant’s claim. Further, during the resumption of the case conference that took place after the motion’s hearing, a hearing on the substantive issue was scheduled. This means no further case conferences are scheduled in this matter, which, in turn, means the respondent has the assurance that the applicant will not fail again to appear at a subsequent case conference.
B. Costs
[14]. The respondent relies on LAT Rule 19 for its claim for costs from the applicant for his failure to attend at the case conference on May 12, 2017, for his failure to seek an adjournment of the case conference or for his failure to seek the permission of a representative to attend on his behalf pursuant to LAT Rule 14.6.
[15]. Rule 19 of the LAT Rules states that 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. The respondent submits that the purpose for costs award was explained in P.B. and RBC Insurance Company, November 7, 2016 (16-000284/AABS), in which Adjudicator Chris Sewrattan stated that cost awards under LAT Rule 19 are to maintain civility and order during proceedings, to deter conduct that threatens the orderly and civil resolution of an application, and to ensure that the Tribunal’s process and the other participants are respected. I agree with and adopt the purpose for awarding costs that were set out by Adjudicator Sewrattan.
[16]. At the May 12, 2017 case conference, I ordered the respondent to serve and file written submissions on its claim for costs pursuant to LAT Rule 19.3. Rule 19.4 of the LAT Rules requires the respondent to set out in its written submissions the particulars of the applicant’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith. The particulars in the respondent’s written submissions of the applicant’s conduct are as follows:
- The applicant did not participate in the May 12, 2017 case conference and gave no advance notice from the applicant that he would be unable to participate;
- The applicant did not comply with Rule 14.6. He did not attend the case conference, nor did he make any arrangements for a representative (formal or otherwise) to participate on his behalf; and
- The applicant’s failure to participate in the May 12, 2017 case conference meant that the case conference could not proceed, and necessitated the scheduling of a further case conference.
[17]. At the motion’s hearing, the respondent submitted that the applicant’s conduct displayed disrespect for the Tribunal. The respondent submitted that costs are warranted because the motion’s hearing and the attendance at a further case conference could have been avoided if the applicant had simply requested an adjournment of the May 12, 2017 case conference.
[18]. The respondent submits that it should be awarded costs because the applicant’s conduct was unreasonable and vexatious, and hinders the efficiency of the Tribunal’s process. LAT Rule 19.1 does not say anything about whether entitlement to costs requires that the conduct of the unreasonable or vexatious party also hinder the efficiency of the Tribunal’s process. The requirement in LAT Rule 19.1 that the party’s actions be frivolous, vexatious, in bad faith or an abuse of the process implies the party must be acting intentionally or at the minimum, recklessly or with deliberate disregard for the consequences. When the party bringing the proceeding is acting without reasonable or probable cause or excuse or merely wishes to annoy or harass his or her opponent, such conduct could be said to be “vexatious."1 A party may act in a manner that hinders the efficiency of the Tribunal’s process, but without the actions being unreasonable, vexatious, in bad faith or an abuse of process, the party’s actions will not merit a costs award.
[19]. A failure to comply with LAT Rule 14.6 without providing a reason is troublesome and may constitute evidence of a disregard or disrespect for the Tribunal’s authority. The applicant alleges that he did not seek an adjournment of the May 12, 2017 case conference or seek to have a representative appear for him in accordance with LAT Rule 14.6 because 1) he was too ill and 2) he did not know the process involved. The problem with the applicant’s second assertion is that he had received notices of the previous four case conferences as he was able to participate in them. All of those notices clearly state the process required by LAT Rule 14.6 if a party is unable to attend the case conference. Further, the applicant in the past has shown he is capable of contacting the Case Management Officer assigned to the file to ask about the process. Although unrepresented, the applicant is not an unsophisticated litigant, but is a paralegal and, therefore, is presumed to have a working knowledge of the processes of a Tribunal. I, therefore, find little merit in the applicant’s assertion that he did not know the process involved if he was unable to participate in a case conference due to illness.
[20]. Turning to the applicant’s submission that he was too ill to attend the case conference, the applicant did not provide any medical evidence to support his affidavit evidence that he was suffering a mental breakdown. He stated at the motion hearing that he had not seen any medical practitioner contemporaneous to the May 12, 2017 case conference who diagnosed him with a mental breakdown. He submitted that he filed a report prepared by Dr. Tugg in 2016 at the request of the respondent that indicates that the applicant has psychological problems that impede his ability to participate in the LAT process. I was unable to locate any reports by Dr. Tugg or any other reports from 2016 filed by the applicant. There is a report on file, prepared in 2013 by a psychiatrist who conducted an insurer’s examination, in which he is diagnosed with a psychological impairment.
[21]. The applicant submitted at the motion hearing that he was bedridden for eight days during the time of the May 12, 2017 case conference. He did not seek immediate treatment as a result of his decline in health as he has not had a family physician for the last three years. He last obtained treatment from a psychiatrist in February 2017. He did not have any medical note or report to support his claim that he was suffering from a mental breakdown on May 12, 2017, because he is impecunious and, therefore, unable to afford the cost of obtaining a doctor’s note or report.
[22]. I accept that the applicant was unable to obtain a doctor’s note. I am satisfied with the applicant’s explanation of why he did not submit any evidence to corroborate his affidavit evidence that he suffered a decline in his mental health that prevented him from participating in the May 12, 2017 case conference. I also note that there was no evidence to contradict or refute the applicant’s evidence that he suffered a decline in his mental health. He offered a credible explanation for his conduct and, for these reasons, I am not satisfied that the respondent has proven at this stage of the proceeding that the applicant’s actions were intended to harass, annoy, or to show disrespect to the Tribunal such that the applicant’s actions can be classified as unreasonable, frivolous, vexatious, or in bad faith.
CONCLUSION
[23]. For the reasons outlined above, the respondent’s motion to dismiss the applicant’s appeal with costs or, in the alternative, for the respondent’s costs for attending the May 12, 2017 case conference is dismissed.
Released: July 25, 2017
___________________________
Deborah Neilson, Adjudicator