RECONSIDERATION DECISION
Before: Terry Hunter, Vice Chair
File: 18-009017/AABS
Case Name: N.M. vs. The Guarantee Company of North America
Written Submissions by:
For the Applicant: Andrew Franzke, Counsel
For the Respondent: Patrick W. Brennan, Counsel
OVERVIEW
1This Request for Reconsideration was filed by, the applicant in this matter. It arises out of a decision in which the Tribunal found that the respondent was entitled to an order of costs in the amount of $1,000.00. The applicant requests that the Tribunals decision be overturned or alternatively referred to another adjudicator.
2The respondent opposes the applicant’s request for reconsideration and requests that the Tribunal’s decision be upheld.
3The applicant advances two grounds for the reconsideration request. The first is the Tribunal violated the rules of procedural fairness under section 18.2(a) of the Tribunal’s Common Rules of Practice and Procedure by having Vice Chair Hunter preside at the motion hearing to determine the respondent’s claim for costs. The applicant asserts that having Vice Chair Hunter determine the cost request raised a reasonable apprehension of bias. The second ground advanced by the applicant for reconsideration, under Rule 18.2(c) is the decision was made on false and misleading evidence from a party which was discovered after the hearing and would have affected the result.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the Tribunal’s Common Rules of Practice and Procedure with the applicable rules of the Tribunal.
RESULT
5The applicant’s Request for Reconsideration is dismissed.
BACKGROUND
6The applicant was involved in an accident on May 16, 2015
7The parties have been involved in several dispute resolution proceedings as a result of the accident. The relevant applications for this reconsideration are LAT Application 18-002753 and LAT Application 18-009017.
8LAT Application 18-002753 concerned a treatment plan for catastrophic impairment assessment dated February 5, 2018 in the amount of $28,400.00. It was filed with LAT in March 28, 2018. A case conference was held September 18, 2018. The adjudicator issued an order setting January 21, 2019 as the date for the party’s exchange of documents. The hearing was set for February 20 to 22, 2019.
9February 19, 2019 the applicant emailed the respondent advising that LAT Application was being withdrawn. No explanation was provided.
10The respondent brought a motion for costs on February 25, 2019 based on the withdrawal of the application. The request was denied.
11A Case Conference for LAT Application 18-009017 was held on February 7, 2019. A hearing was scheduled for July 2 to 5, 2019
12On March 18, 2019 the applicant brought a motion to add to LAT Application 18-009017 the February 5, 2018 treatment plan for catastrophic impairment assessment, the issue in the withdrawn LAT Application 18-002753. The motion was opposed by the respondent. A motion decision was released April 9, 2019 granting the addition of the February 5, 2018 treatment plan to LAT Application 18-009017. I noted in the motion decision; “I in no way condone the cavalier attitude of the Applicant in withdrawing the treatment plan on the eve of the hearing.”
13June 20, 2019 the Tribunal heard the respondent’s motion regarding the issues in dispute and productions. The applicant made no mention of any difficulties regarding the hearing to commence July 2, 2019.
14June 26, 2019 the applicant brought a motion to add witnesses to the July 2, 2019 hearing. The motion was to be heard at the onset of the scheduled hearing. The applicant did not indicate in their materials any problem with the hearing progressing.
15June 28, 2019 the last business day prior to the scheduled hearing the applicant emailed the respondent requesting an adjournment due to the unavailability of an essential witness. The applicant advised they would withdraw the application if the adjournment request was refused.
16June 28, 2019 the applicant withdrew LAT Application when the respondent did not consent to an adjournment.
17July 10, 2019 the respondent brought a motion for costs.
18In the Motion Order dated August 1, 2019, I ordered costs payable to the respondent in the amount of $1,000.00
The allegation of bias
19In the Motion Order of April 9, 2019, I described the applicant’s conduct as cavalier in withdrawing their application on the eve of a multiday hearing. The term was meant to describe the offhand disregard for the efforts of opposing counsel. The motion by the applicant was to add the withdrawn issue to the previously scheduled hearing. The motion was opposed by the respondent. The applicant was successful on the motion to add the withdrawn issue. The respondent based in part its opposition to the motion on the conduct of the applicant who it alleged did not appreciate the cost and effort of the respondent’s preparations for the hearing.
20I presided over the respondent’s claim for costs with respect to the second withdrawal effectively on the eve of the hearing. The applicant submits my prior comments in the Motion Order of April 9th demonstrates a predetermination of the issue.
21I reject the applicant’s submission of the allegation of bias. In paragraph [11] of my July 30th Motion Order I found that having been subject to a prior request for costs for a last-minute withdrawal the applicant was effectively put on notice that repeat withdrawal would result in a cost request.
22Applicant’s counsel in paragraph 13 of his submission for the reconsideration describes the decision to withdraw the application as not the most procedurally efficient decision and that the advice to the applicant to withdraw by his counsel could be characterized as poorly conceived but not unreasonable.
23The award of costs was predicated on the fact the applicant had withdrawn a LAT application on the eve of a multi-day, in-person hearing for the second time in a period of a few months. I found this conduct unreasonable.
24The test for a reasonable apprehension bias is set out by the Ontario Court of Appeal in Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunal): “The question is thus whether “an informed person, viewing the matter realistically and practically – having thought the matter through” would think it more likely than not that the decision-maker would decide fairly”1
25I find an informed person would find the applicant’s conduct unreasonable and subject to censure through a cost award.
The allegation the decision was made on false and misleading evidence
26The applicant submits the finding in paragraph [6] that “the applicant, the respondent submits did not attempt to have the witness accommodated through additional hearing dates or attendance by teleconference” was not in the submissions of the respondent. It is alleged this information was submitted outside the context of the written submissions. The respondent in their motion submissions dated July10, 2019, on page 5 submit; “Accommodation of witnesses through reliance on paper reports, additional hearing dates being scheduled, or attendance by telephone are widely available.”
27The June 28, 2019 email from the applicant’s counsel to the respondent’s counsel offered no alternative other than consent to the adjournment or the application will be withdrawn.
28I find there was no false or misleading evidence relied on for the decision. I reject the applicant’s request for a reconsideration on this basis.
29The third ground advanced by the applicant is I made a significant error in paragraph [11] by characterizing the withdrawal as a litigation strategy. The applicant submits no analysis was provided as to why that finding of fact was made.
30The adjournment request was an accept or the application will be withdrawn. It is clear the applicant was using the threat of withdrawal to obtain consent to the adjournment. Describing the tactic as a litigation strategy is appropriate.
31For the reasons above, I dismiss the applicant’s request for a reconsideration.
Released: July 15, 2020
______________________
Terry Hunter
Vice Chair
Footnotes
- Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518