Tribunal File Number: 17-003303/AABS
Case Name: 17-003303 v Unifund Assurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
K.K.
Applicant
and
Unifund Assurance Company
Respondent
MOTION DECISION
ADJUDICATOR: Robert Watt
Appearances:
For the Applicant: Fathima Inhaam, Counsel
For the Respondent: Brenda Cuneo, Counsel
Heard by teleconference: November 6, 2017
OVERVIEW
1The applicant was injured in an automobile accident on March 20, 2014, and sought benefits pursuant to the Statutory Accident Benefits schedule-effective September 1, 2010 (the “Schedule”).
2A case conference was held on July 18, 2017. The case conference order listed three issues in dispute being: whether the applicant’s injuries were predominantly minor; whether the applicant is entitled for the costs of $2200.00 for a recommended orthopaedic assessment, and whether there is interest due for overdue payments of benefits?
3The case conference ordered a written hearing to be scheduled for October 24, 2017, with the applicant’s written submissions to be served and filed by September 29, 2017.
4No written submissions were filed by the applicant. The applicant filed on October 4, 2017, the same materials that were submitted at the case conference in July .The applicant did not bring a motion to extend the time for filing the written submissions. The applicant did not make any written submissions, so the respondent could not submit its written submissions.
5The respondent brought a motion dated October 5, 2017, seeking an order dismissing the application and costs.
Submissions of the parties on the Motion
Applicant’s Position
6The applicant’s position was that she was new counsel on the file and only met the client on the Monday before she filed the case conference materials on October 3, 2017.
Respondent’s Position
7The respondent’s position is that the former counsel in July indicated at that time that because of medical conditions, that he would no longer be representing the applicant. The former counsel was from the same law firm.
8The respondent’s position was that there had been no contact by the applicant, asking for an adjournment. The respondent has had to endure costs to bring the motion and attend on the motion.
9The respondent’s position is that the application should be dismissed on the grounds that the appeal is frivolous, vexatious, commenced in bad faith or is otherwise an abuse of process. The respondent also takes the position that the applicant, by not filing written submissions has abandoned the proceeding.
Result
10The motion is granted and the application is dismissed without costs.
Reasons
11It is the applicant’s responsibility to prove on the balance of probabilities her claim. There has been no written submissions made on behalf of the applicant, as ordered on July 19, 2017.
12There has been no motion, written or oral, made by the applicant under the LAT RULES OF PRACTICE and PROCEDURE (RULES), to ask for an extension of time to submit her written submissions.
13I find that there is no valid reason given by the applicant, as to why the terms of the order were not complied with.
14The applicant’s counsel only indicated that counsel obtained the file after the due date (September 29, 2017) when the written submissions were to be served and filed with the Tribunal. I note that the same law firm represented the applicant.
15Section 3.4 of the Rules permits the Tribunal to dismiss an appeal if the appeal is frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process. The tribunal can also dismiss the appeal if the party filing the appeal has abandoned the proceeding.
16I find that the applicant, by ignoring the tribunal’s order issued July 19, 2017, to file written submissions, the applicant’s failure to bring any motion under the Rules for extending the time to file the written materials, and the applicant’s failure to communicate with the respondent on the issues of extending the time to file written submissions, is an abuse of the process.
17Section 19.1 of the Rules allows costs to be ordered in any proceeding where the other party has acted unreasonably, frivolously, vexatiously, or in bad faith.
18I find that the respondent has incurred legal costs for having to bring the motion and attend on the motion, due to the applicant’s inaction.
19I consider whether the applicant is being penalized if the application is dismissed, by the inaction of his representative. Should the applicant be given another chance to file written submissions?
20If the applicant is given a further chance to file written submissions, then the respondent should be given its costs of the motion. The costs awarded to the respondent would reduce the applicant’s claim significantly, even if the applicant’s claim were to be successful. The applicant’s claim would further be reduced by the applicant’s legal costs for drafting and filing the written submissions.
21The applicant therefor, even if successful on her claim, would in reality receive nothing from the amount that she has claimed. This would make the adjournment to allow the applicant to file written submissions, a moot issue.
22It is well established that one of the purposes of the SABS is to ensure the timely submission and resolution of claims for accident benefits.1
23By allowing a further adjournment for the applicant to file written submissions, would be contrary to the purpose of the SABS, to ensure the timely submission, and resolution of a claim. An adjournment would also again consume the time and resources of the Tribunal, for this application.
24I find that the fair solution to both parties involving further time commitments and further legal costs, is to grant the motion for dismissal of the application, but with no costs.
Released: February 8, 2017
_______________________
Robert Watt, Adjudicator
Footnotes
- Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111