Release date: 2021/03/08
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:
[LD]
Applicant
and
Gore Mutual Insurance Company
Respondent
COSTS DECISION ON MOTION TO RECUSE
Order made by:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant:
Imtiaz Hosein, Counsel
For the Respondent:
Arthur Camporese, Counsel
HEARD:
by way of written submissions
OVERVIEW
1On May 27, 2020, I released a decision in which I found, among other things, that the applicant [Ms. D’s] motion filed on July 31, 2019 was moot. I requested submissions on costs from the respondent Gore Mutual Insurance Company (“Gore”) within 10 days of the release of my decision and from [Ms. D.] within 10 days of receiving Gore’s costs submissions. The respondent, Gore, made submissions seeking costs from [Ms. D.] The Tribunal received Gore’s submissions on June 3, 2020. No costs submissions were received from [Ms. D.]
2[Ms. D.] responded to my decision by bringing a motion that I recuse myself on the grounds of a reasonable apprehension of bias and denial of procedural fairness. In a decision released on October 21, 2020, I denied [Ms. D’s] recusal motion. I gave her 14 days from the release of that decision to make costs submissions, that is by November 4, 2020. [Ms. D.] did not make submissions by November 4. Her submissions were received on November 9, 2020. Gore asks me to disregard [Ms. D’s] submissions on the basis that they were filed after the deadline set out in my October 21, 2020 order.
3Gore has suffered no prejudice for a delay of five days and, in fact, replied to [Ms. D’s] submissions on November 12, 2020.
4I will not consider [Ms. D’s] sur-reply submissions filed on November 13, 2020. These submissions were not solicited by the Tribunal, address nothing new, and violated the usual time-honoured procedure that there are submissions, response and reply. They represent nothing more than an attempt to get the last word in.
Rule 19 - Costs
[5] Pursuant to Rule 19 of the version of the Tribunal’s rules in effect when [Ms. D.] filed her application, the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”), a party may request costs at any time before the release of a decision. Both [Ms. D.] and Gore requested costs in their material filed for the December 18, 2019 hearing. Unlike costs orders in civil proceedings, a successful party is not presumptively entitled to costs. Rather, the Rules consider costs as a deterrent for a party that “has acted unreasonably, frivolously, vexatiously, or in bad faith” in a proceeding.
6As will be seen from a review of the proceedings below, I find that [Ms. D.] has acted unreasonably and in bad faith in bringing a motion for relief previously denied by the Tribunal with no new grounds and, during the hearing, making a collateral attack on another order of the Tribunal.
The July 31, 2019 and the October 31, 2018 Motions
7On August 1, 2019, [Ms. D.] filed a Notice of Motion with the Tribunal dated July 31, 2019. The substantive relief sought in the motion was:
A) an order that the Response by an Insurance Company to an Injured Person's Application for Auto Insurance Dispute Resolution under the Insurance Act in this matter be struck in its entirety with no leave to amend;
B) the Licence Appeal Tribunal file a complaint with the LSUC [the Law Society of Ontario since 2018] with respect to the Respondent's counsel, Mr. Camporese's repeated breaches of the Rules of Professional Conduct; and
C) an order that the respondent must pay the applicants' [sic] costs related to all motions and for the main dispute.
8Listed in the grounds for the motion were:
The applicant relies on the grounds as laid out in the Notice of Motion as served on October 31, 2018, and the related supporting materials that were served on the Respondent and filed with the tribunal including the factum, responding factum and reply factum.
The applicant relies on the decision of Adjudicator Jovanovic, with respect to the motion heard December 14, 2018.
9[Ms. D.] had moved for identical relief in an earlier motion served on October 31, 2018 and filed with the Tribunal on November 3. That motion sought:
A) an order that the Response by an Insurance Company to an Injured Person's Application for Auto Insurance Dispute Resolution under the Insurance Act be struck in its entirety with no leave to amend;
B) the LAT file a complaint with the LSUC with respect to Mr. Camporese's repeated breaches of the Rules of Professional Conduct.
10The grounds for the October 31, 2018 motion detailed a litany of complaints addressing the behaviour of Gore’s counsel, Mr. Camporese, during four days of cross-examination on an affidavit Gore’s adjuster, Ms. Jennifer Bethune. The motion was argued on December 14, 2018 and the decision declining to grant the relief was released on February 20, 2019. In the decision, Associate-Chair Jovanovic goes through each of the listed grounds thoroughly and determines that they are insufficient to support an order striking Gore’s response.
Procedural Steps Leading to the December 18, 2019 Hearing.
11In the grounds for the relief [Ms. D.] sought in the July 31, 2019 motion, she asked for:
The Applicant requests that Ms. Bethune be summoned as a witness at the hearing to provide viva voce [sic] evidence and be required to bring with her all documents related to her receipt of the historical transcripts. This is necessary as it is clearly obvious that respondent, through counsel, will not allow Ms. Bethune to give evidence. Ms. Bethune is expected to testify as to when she received the other transcripts and the coaching she has received from counsel for the respondent and from others the full details of which are not known at this time.
The Applicant requests and requires, as a matter of natural justice and procedural fairness, that Mr. Camporese be summoned as a witness. Based on the historical willingness of Ms. Bethune to lie under oath and makes claims of not remembering dates of non-occurring events, Mr. Camporese's testimony is essential to assure the veracity of the testimony of Ms. Bethune.
12The request to summons Ms. Bethune and Mr. Camporese resulted in a motion before Associate Chair Jovanovic. In a decision released on October 31, 2019, the Associate Chair declined to permit [Ms. D.] to summons Ms. Bethune and Mr. Camporese and lead viva voce evidence at the December 18, 2019 motion hearing.
The December 18, 2019 Hearing
13At the hearing, [Ms. D.] focussed her early submissions on Gore’s behaviour over the first four days of the cross-examination of Ms. Bethune. On at least two of occasions, she requested that I permit her to summon Ms. Bethune and Mr. Camporese, “based on what you have just heard.” I pointed out to [Ms. D’s] counsel that the allegations he was advancing had been the subject of the earlier motion before the Associate Chair. I asked him to point me to behaviour following the Associate Chair’s February 20, 2019 decision that elevated Gore’s behaviour to the point where I should now grant the extreme remedy of striking out Gore’s response. I have detailed in my May 27, 2020 decision how flimsy those submissions were. They were so insubstantial as to be frivolous.
14Overall, the motion and the requests to permit viva voce evidence amounted to no more than collateral attacks on Associate Chair Jovanovic’s decisions of February 20 and October 31, 2019. It is exactly this type of behaviour that the costs sanctions of Rule 19 are designed to discourage. Gore is entitled to an order of costs.
15Nor does the refusal to accept the Tribunal’s orders appear to have subsided. A substantial part of [Ms. D’s] submissions on costs consists of a further attack on the correctness of my May 27 and October 21, 2020 orders. Only one sentence in her submissions claims “a full indemnity award,” but no bill of costs is attached and quantum is not mentioned again.
Quantum
16As stated above, the version of the Rules in effect with respect to this matter is the 2016 version, not the 2017 version. Gore cites Rule 19.6 of the 2017 Rules for the proposition that the maximum I can order for one day of hearing is $1,000. The 2016 Rules have no equivalent to Rule 19.6 in the 2017 version. I cannot see that they limit my discretion on the quantum of costs I can order. Having said that, I am disposed to order the sum of $1,000 as being reasonable in the circumstances of this case. I have no doubt that it falls far short the total cost to Gore of defending itself, but, given the parties’ expectations working in a predominantly no costs regime and given the goal to discourage unreasonable, frivolous, vexatious, or bad faith behaviour, I believe an order of costs in the amount of $1,000 will have sufficient deterrent effect.
ORDER
17[Ms. D.] is ordered to pay costs to Gore in the amount of $1,000 within 30 days of the release of this decision.
Date of Issue: March 8, 2021
D. Gregory Flude, Vice-Chair