LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: January 30, 2017 Tribunal File Number: 16-000435/AABS

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

Between:

M. M. S.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Chloe Lester

Appearances:

For the Applicant: Elena Steinberg, Counsel For the Insurance Company: Darrell March, Counsel

Heard in Writing: November 10, 2016

Introduction:

1. The applicant, M.M.S., was injured in a motor vehicle accident on February 28, 2014. Disputes arose between the applicant and her insurer, Wawanesa Mutual Insurance Company (“respondent”) concerning her entitlement to accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹

2. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

3. A case conference in this application was held via teleconference on September 22, 2016 and an Order for production was issued.

4. In a letter dated October 27, 2016 addressed to the Tribunal and copied to counsel for the respondent, Ms. Steinberg, counsel for the applicant, indicated that she had not received production of documents, nor any correspondence from the respondent. Ms. Steinberg requested a further Order on production, an extension of time for submissions, and requested costs.

5. A second, separate application arising from the same accident was filed by B.F. A separate decision on costs will be issued for his application (Tribunal File 16-000433/AABS).

Issue:

6. Is the applicant entitled to costs pursuant to the Licence Appeal Tribunal Rules of Practice and Procedure, Rule 19²?

Result:

7. The applicant is entitled to costs in the amount of $250.00.

Background:

8. A case conference for this application was held via teleconference on September 22, 2016. At the case conference, Ms. McAvoy represented the respondent in place of Mr. March. The parties consented to exchange documents by October 25, 2016 and their consent was noted in the Tribunal’s Order.

9. On September 28, 2016, the Tribunal was copied on a letter sent by Ms. Steinberg to Mr. March reiterating the request for productions and reminding Mr. March of the impending Order deadline of October 25, 2016.

10. On October 27, 2016, the Tribunal received a letter from Ms. Steinberg, copying Mr. March, indicating that the respondent had not complied with the Tribunal’s Order. Ms. Steinberg stated that she had followed up with Mr. March regarding the production Order on the companion file with two letters dated September 28, 2016 and October 14, 2016, reminding him of the production request and the Order deadline. She alleges that Mr. March has neither complied with the Tribunal’s production Order nor responded to her letters. Ms. Steinberg requested a further Order for production, an extension of time for submissions, and requested costs.

11. On November 2, 2016, the Tribunal wrote to the parties ordering the respondent to produce the documents by November 4, 2016. As per rule 19.3 of the Licence Appeal Tribunal Rules of Practice and Procedure³, both parties were given 7 days to submit arguments on the issue of costs with a due date of November 9, 2016.

12. On November 7, 2016, the applicant filed submissions on the issue of costs, seeking $1,000.00 for failure to comply with the Tribunal’s Orders. The applicant submits that the respondent’s failure to comply with the Tribunal’s Order caused her to request a timeline extension, as she had not received important documents. Counsel for the applicant had followed up with Mr. March with numerous letters and phone calls, all with no response.

13. On November 8, 2016, the Tribunal was copied on a letter from Mr. March to Ms. Steinberg that indicated he had requested the documents from his client and would forward them as soon as they were received.

14. On November 9, 2016, the Tribunal phoned Mr. March’s office and confirmed that he had received the Order dated November 2, 2016 and the initial submissions from Ms. Steinberg dated November 7, 2016. Later that day, the Tribunal received Mr. March’s submissions on the issue of costs. He argues that according to the Statutory Power and Procedures Act (s. 17.1)⁴ and the Licence Appeal Tribunal Rules Practice and Procedure (Rule 19)⁵, the Tribunal may Order costs against a party if they have acted unreasonably, frivolously, vexatiously or in bad faith. Mr. March submitted that he had requested the documents from his clients and would forward them as soon as they were received. He submitted neither he nor his client had acted unreasonably, frivolously, vexatious or in bad faith.

15. Ms. Steinberg, on November 10, 2016 replied, submitting that costs are appropriate under these circumstances, as the respondent had failed to comply with two Orders of the Tribunal. Further, she submitted that the letter sent on November 8, 2016 was deficient as it only addresses part of the Order for production and fails to address the documents requested from the assessors. It is the applicant’s position that the respondent has acted unreasonably.

Law:

16. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure⁶:

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.”

17. Under the definitions, rule 2.17 defines the proceeding, as “the entire Tribunal process from the start of an appeal to the time a matter is finally resolved.”

18. Under s. 17.1 of the Statutory Powers and Procedure Act⁷ a 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…”.

Decision:

19. Based on the evidence and facts submitted, I find that the respondent has acted unreasonably during the course of these proceedings. The respondent made no attempt to produce the required documents until after the second Order was made. The respondent and their counsel were both present for the case conference and were aware of, and consented to the timelines. The applicant followed up twice prior to the disclosure deadline in the initial Order with reminders. Most of the required documents are in the possession of the respondent and no attempts were made to comply with either Order until after the request for costs were made. The respondent has been disrespectful of the Tribunal’s process and has provided no explanation as to why it did not comply with the Tribunal’s Orders.

20. I find that the respondent’s conduct interfered with the Tribunal’s capacity to maintain an efficient proceeding. The respondent’s lack of compliance with the initial order necessitated that the Tribunal issue a second production order and follow up directly with the respondent in a phone call.

21. The extra effort by the applicant’s counsel to seek a second Order enforcing the Tribunal’s original Order on production, and to seek an extension of time for submissions is clear evidence establishing the respondent’s unreasonable conduct.

22. The Tribunal issues orders in proceedings to ensure the fair and efficient resolution of disputes. The respondent’s disregard of these orders, twice, clearly establishes its conduct as unreasonable under Rule 19. The issue with such conduct is not confined solely to the difficulties and prejudice caused to the applicant in this matter. Delay in proceedings before administrative tribunals can undercut their very rationale: the effective and efficient resolution of disputes in a manner that ensures access to justice for all parties. The Tribunal’s rules and orders must be respected and followed promptly and responsively.

23. The applicant requested costs in the amount of $1,000.00. I find this amount is not proportional to the specific behavior. The award should be set high enough to discourage the conduct from occurring again. Accordingly, the respondent is ordered to pay costs of $250.00 to the applicant.

Date of Issue: January 30, 2017

Chloe Lester

Adjudicator

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)
3. 3Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)
4. 4Statutory Powers and Procedure Act, R.S.O. 1990
5. 5Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)
6. 6Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)
7. 7Statutory Powers and Procedure Act, R.S.O. 1990