Licence Appeal Tribunal File Number: 21-011987/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:
Mekonen Mosa
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ian Maedel, Vice Chair
APPEARANCES:
For the Applicant:
Michael Bishop, Counsel
For the Respondent:
Oliver Gorman-Asal, Counsel
Genevieve Madill, Articling Student
Motion heard via
Teleconference on:
November 17, 2021 and January 5, 2022
BACKGROUND
1The applicant was injured in an automobile accident on December 4, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010.
2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3A case conference has been scheduled for August 25, 2022.
MOTION
4On October 6, 2021, the applicant filed a Notice of Motion requesting that the Tribunal;
i. Compelling the respondent to provide particulars clarifying the statement made by Rebecca McPhee, Claims Representative, made in the email correspondence dated September 22, 2021.
5On November 15, 2021, the applicant filed a reply to the respondent’s motion materials and requested the Tribunal grant the following relief:
ii. Exclude Heather Morrow from the motion and disregarding the motion material purportedly served by the respondent on applicant and the Tribunal dated November 8 ,2021.
Applicant’s Position
6The applicant submits further particulars are required regarding Ms. McPhee’s comments and the Job Site Analysis Report dated August 30, 2021. The particulars are required because the rationale for denying the applicant’s ongoing claim for income replacement benefits is unclear. These particulars are necessary not only to permit the applicant to know the case to meet, but for the Tribunal to have a full and satisfactory understanding of the issues in dispute.
7The applicant further submits that Ms. Morrow should be excluded from making submissions at this motion hearing pursuant to s. 23(3) of the Statutory Powers Procedure Act (“SPPA”)1. The applicant submits Ms. Morrow is providing legal services, but is not licensed by the law society and not subject to sanction as a licensee. Similarly, Ms. Morrow is an employee of the insurance company, not a party pursuant to Rule 2.16 of the Tribunal’s Common Rules of Practice & Procedure (“Rules”).
Respondent’s Position
8The respondent submits it will consent to provide further particulars regarding Ms. McPhee’s comments in the email correspondence dated August 30, 2021. However, the respondent will only provide this information if the particulars do not constitute an additional or subsequent denial. Regardless, this relief is improperly plead and should otherwise by a request for reasons pursuant to s. 38(8) of the Schedule, relating to medical and other reasons. This issue goes to the heart of the denial at issue and is part of the factual inquiry undertaken by the hearing adjudicator, not on a preliminary procedural motion. In the alternative, the request for particulars should be argued at the case conference.
9Ms. Morrow is the claims representative assigned to this file. Her appearance is akin to a self-represented litigant pursuant to Rule 6.7. She is not a witness and her exclusion from this motion hearing has no basis in law. To deny her ability to appear would result in an absurdity and would result in a negative precedent to set regarding self-represented litigants.
RESULT
Particulars
10The applicant’s motion for further particulars is denied at this stage.
11As per Rule 2.15 particulars are specific facts that clarify an allegation or assertion or provide additional information about a person’s statement.
12The statement made by Ms. McPhee regarding the Job Site Analysis Report goes to the very heart of the denial of income replacement benefits at issue. Whether or not there is a contradiction in this statement versus the medical and other reasons provided in the denial of this benefit is a factual issue that shall be determined at the hearing.
13Any evidence regarding this alleged contradictory statement shall be addressed during the potential hearing of this matter. The respondent has made a tactical decision at this stage to rely solely on the previous denial. For me to otherwise compel the respondent to provide this information at this stage may fetter the discretion of the hearing adjudicator. Only the hearing adjudicator may make a ruling regarding this issue, as only they will have the benefit of the full panoply of evidence tendered by both parties.
Exclusion of Ms. Morrow
14This issue is largely moot, as respondent counsel has now been retained and Ms. Morrow did not appear at continuation of this motion hearing on January 5, 2021. However, the applicant was unwilling to withdraw this form of relief in order to obtain direction from the Tribunal.
15I do not find that Ms. Morrow is a self-represented individual as the respondent submits. She appeared without counsel and as the ADR Alternative Dispute Resolution (“ADR”) Representative for her employer BelairDirect Insurance Company.
16In response to the Applicant’s Notice of Motion, Ms. Morrow filed a Notice of Motion in response, or a Cross-Motion dated November 8, 2021. While this Notice of Motion did not contain legal argument, she did appear on this motion and would have been required to respond to the legal arguments posed by the applicant.
17Ms. Morrow is not legal counsel, nor is she bound by membership in the Law Society of Ontario. My concern regarding her attendance at the previous Motion Hearing was that she would be expected to provide a response to the legal arguments and case law provided by the applicant. In my opinion, this strays into the realm of providing legal services on behalf of her employer. That is precisely why this matter was adjourned for her to provide further submissions on this very issue.
18ADR representatives regularly appear without counsel at case conferences pursuant to Rule 14 of the Tribunal Rules. Case conferences often involve settlement discussions and case management. They are not procedural motions where points of law are argued. Ms. Morrow is not a ‘representative’ as defined in Rule 2.20, as she is not licensed under the [Law Society Act]2, thus, pursuant to s. 23(3) of the SPPA, she could be excluded as not being competent to represent or advise the BelairDirect at this motion hearing.
19Rule 26.1 of the Law Society Act states that no person other than a licensee shall practice law or provide legal services in Ontario. In my view, stretching the liberal interpretation of the Rules and the SPPA to permit Ms. Morrow and other ADR representatives to provide legal services is contrary to Rule 26.1. Permitting unlicensed parties to provide legal services could also result in procedural unfairness parties pursuant to Rule 3.1(a) of the Tribunal Rules.
20Overall, it is my view that sophisticated parties like BelairDirect shall ensure that any person providing legal services before the Tribunal is licensed to do so. Otherwise, it runs the risk of exclusion of representatives from Tribunal proceedings pursuant to Rule 2.20 of the Rules and s. 23(3) of the SPPA.
21Except for the provisions contained in this Motion Order all previous orders made by the Tribunal remain in full force and effect.
OTHER PROCEDURAL MATTERS
22This matter remains scheduled for a case conference on August 25, 2022 at 9:00 am via teleconference.
23If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.
Released: January 11, 2022
___________________________
Ian Maedel
Vice Chair