Tribunal File Number: 19-003567/AABS
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:
[MS]
Applicant
and
Continental Casualty Insurance Company
Respondent
MOTION ORDER
Order made by:
Terry Hunter, Vice Chair
September 23, 2020
APPEARANCES:
Applicant:
Gus Triantafillopolous, Counsel
Respondent:
Catherine Korte, Counsel
Don Geiles, Adjuster
Privacy Counsel:
Brigette Morrison, Counsel
Court Reporter:
Guido Rigioni
Motion heard by Teleconference:
September 16, 2020
OVERVIEW
1The applicant was injured in an automobile accident on Sunday, June 7, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied certain benefits and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3A case conference took place on Wednesday, August 26, 2020. The issues identified were did the applicant sustain a catastrophic impairment, entitlement to an income replacement benefit, entitlement to an attendant care benefit, entitlement to a housekeeping and home maintenance benefit and a number of medical benefits.
4The current motion arises from a motion hearing held April 29, 2020 which was to determine whether the redactions in the adjuster’s log notes were appropriate. I ruled I would review the redactions. On May 25, 2020 I advised the parties I identified three grounds for the redactions; 1. Investigation of the tort claim; 2. Redactions for reserves; and 3. Solicitor client privilege. I advised I could not comment on the first ground except to say I was unsure why the tort and AB files were co-mingled. I found the remaining redactions appropriate.
MOTION
5On August 6, 2020, the applicant filed a Notice of Motion requesting that the Tribunal;
i. Order the respondent to provide the applicant with a copy of the complete unredacted adjusting log notes.
ii. Order that counsel of record, Kathleen O’Hara and Strigberger, Brown, Armstrong be removed as counsel.
iii. Order that a claim for punitive damages be added as an issue in dispute to the hearing.
iv. Order the respondent pay the applicant costs of the motion.
6There were some preliminary issues raised by the applicant at the commencement of the motion hearing. The issues and my ruling on these issues are as follows;
a. The respondent requested on August 27,2020 they be allowed to have a court-reporter present to record the hearing. The respondent based the request on the novel and complex nature of the motion and their requirement that a record of the motion be created if necessary, for review. The applicant objected submitting it was unclear what use would be made of the transcript. The applicant did provide a submission on what restriction should be imposed on the use of the transcript. I grant the respondent permission to have a court reporter attend the motion hearing and to record the hearing. The respondent agreed to the applicant’s suggested restrictions on the use of the transcript. The recording or transcript of the motion hearing shall not be disclosed to any party other than the applicant, her counsel, the respondent and their counsel unless otherwise ordered by the Tribunal. The transcript shall not be used in any other proceedings other than proceedings before the Licensing Appeals Tribunal related to the application in question or appeals or reviews to a court of competent jurisdiction. The reporter did not record any of the proceedings until the completion of the preliminary issues.
b. The respondent filed responding materials dated September 4, 2020 in reply to the applicant’s submissions opposing the recording of the motion hearing. The applicant objects to the reply and asks the reply be struck or alternatively paragraphs 8-22 should be struck as they do not reply to the applicant’s responding submissions regarding use of the court reporter. I indicated verbally during the motion hearing I would not strike the reply in its entirety. I will not consider paragraphs 8 to 22 in my decision.
c. The applicant seeks costs of the motion responding to the issue of the court reporter. Considering the result, I make no order as to costs.
d. Privacy Counsel. September 4, 2020, Brigette Morrison in correspondence to the LAT advised she was retained as privacy counsel by the respondent to respond to allegations of privacy breaches by the applicant which are the foundation for the claim for punitive damages and the unredacted log notes. The respondent’s accident benefits counsel, Ms. Korte cannot communicate with the tort adjuster or tort counsel or the previous accident benefit adjuster or counsel, nor can she review the unredacted log notes. Ms. Morrison requested standing to participate in this motion proceeding. Alternatively, an order granting leave to be present during the argument on whether LAT has the jurisdiction to address privacy issues and the jurisdiction to consider or award punitive damages. The applicant opposed Ms. Morrison’s attendance. The applicant submitted the privacy counsel was a third party and had not followed any protocol to be added as a party. My ruling made orally was Ms. Morrison was granted leave to be present during the motion hearing. I also permitted Ms. Morrison to raise any issues related to the relief she sought in her September 4, 2020 correspondence, at the conclusion of the motion hearing. She did not make any submissions and indicated she would await my decision on the motion. Rule 3.6 of the Tribunal’s Common Rules of Practice and Procedure allow the Tribunal to add a person as a party to a proceeding if the person has a significant interest in the proceeding. I find Ms. Morrison on behalf of her client has a significant interest which the accident benefits counsel cannot fully respond to.
RESULT
7My ruling on the issues raised in the applicant’s motion are as follows;
The request for the complete unredacted log notes is denied.
Counsel has been replaced an order is not required.
An order that punitive damages be added as an issue in dispute to the hearing is denied.
Considering the result, I make no order for costs to the applicant.
Issue 1. The adjusting log notes
8At the oral hearing of this motion the applicant refined their request to seek only the log notes redacted for the investigation of the tort claim. The applicant submits the co-mingling has resulted in both the AB and Tort having an unfair litigation advantage over the applicant. This results as well as a waiver of the claim for privilege in the co-mingled log notes.
9The respondent’s submission is twofold. 1. The respondent has replaced both the AB counsel and adjuster. They have only access to the AB file and log notes and the co-mingled log are not available. There is not it is submitted an unfair advantage to the respondent. 2. The respondent submits the issue is res judicia having been dealt with in my Motion Order of May 4, 2020. The ruling was the redacted portions were not admissible at hearing as a result of section 5.4(1) of the Statutory Powers Procedures Act, R.S.O. 1990.
10I find no unfair advantage to the respondent having replaced both counsel and adjuster and restricting access to the tort file and the co-mingled log notes. I find the actions of the respondent do not constitute a waiver of privilege in the co-mingled log notes as their actions rebut there was a clear intention to waive privilege.
11I deny the request for the unredacted co-mingled log notes.
Issue 3. Punitive damages
12The applicant submits the respondent breached its obligations under PIPEDA and its duty of good faith owed to the applicant by co-mingling the tort and AB. This it states is the foundation for punitive damages based on the malicious, high-handed conduct of the respondent.
13I heard extensive submissions from both parties. I will not refer to those submissions as I find the law is clear that the LAT does not have jurisdiction to award punitive damages. Both parties referred to the Ontario Court of Appeal decision in Stegenga.1 The court held it is not the remedy sought but the facts giving to the dispute that determines jurisdiction. The claim in this application is for Statutory Accident Benefits. Those facts give rise to LAT’s jurisdiction. The court stated; “It is not the legal characterization of the claim but the facts giving rise to the dispute that are determinative.”2
14I find that the Court of Appeal in Stegenga clearly describes LAT jurisdiction as confined to determining whether a benefit was unreasonably withheld or delayed which could lead to what is referred to as a “special award”. There is no jurisdiction to award damages based on bad faith.
Date of Issue: September 28, 2020
_____________________
Terry Hunter, Vice Chair
Footnotes
- Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615.
- Stegenga, para.52