Licence Appeal Tribunal File Number: 19-006331/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:
Richard Sahadeo
Applicant
and
Pafco Insurance Company
Respondent
MOTION DECISION
Decision made by:
Chloe Lester, Vice-Chair
March 31, 2021
For the Applicant:
Joseph Campisi and Ashu Ismail, Counsels
For the Respondent:
Jonathan Schrieder, Counsel
Videoconference Hearing:
March 30, 2022
BACKGROUND
1The applicant was injured in an automobile accident on October 26, 2015, 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”). The issues in dispute in this hearing were whether the applicant was catastrophically impaired and whether he was entitled to various treatment plans. A hearing was scheduled and took place over eight days.
3The applicant claims Mr. Jonathan Schrieder, counsel for the respondent, interfered with the attendance of a summonsed witness, occupation therapist Avi Kaplun, having provided legal advice to him, and condoning his non-attendance at the hearing.
4The applicant filed a motion seeking an Order from the Tribunal stating a case to Divisional Court for a contempt hearing claiming, counsel for the respondent violated the Law Society’s Rules of Professional Conduct prior to and during the hearing.
RESULTS
5The applicant’s motion is denied.
TIMELINE OF EVENTS
6Mr. Kaplun was personally served a summons to attend this hearing that was originally scheduled for July 2021 at his home in Toronto on June 24, 2021. This summons was served by, or on behalf of the applicant’s lawyers at Campisi LLP. Mr. Kaplun claims he does not recall receiving this summons.
7The hearing scheduled for July 2021 was adjourned to January 18, 2022.
8At that time, Campisi LLP did not have the contact information for Mr. Kaplun. Therefore, on January 17, 2022, Campisi LLP communicated with ARS, the assessment company that hired Mr. Kaplun to complete the occupational assessment, asking them to forward a letter that indicated the date and time he would be required to testify at the hearing.
9On January 19, 2022, Mr. Kaplun emailed Ms. Romanowski, a licensed paralegal working with Ms. Ismail at Campisi LLP, indicating that he would make himself available as per his discussions with the respondent’s counsel.
10On January 24, 2022, Ms. Romanowski advised Mr. Kaplun by email that his attendance would be required on January 26, 2022, at 11:30 am and attached the Zoom link.
11Mr. Kaplun responded that Ms. Romanowski ought to speak with the respondent’s counsel as nothing has been confirmed.
12Due to a scheduling conflict, the hearing that was supposed to take place consecutively beginning January 18, 2022, was bifurcated, and the remainder of the hearing days was rescheduled to March 28-30, 2022.
13I issued an order on January 29, 2022, that was sent to Mr. Kaplun on February 7, 2022, indicating that the hearing would continue from March 28-30, 2022, that his attendance was required, and that Campisi LLP would be in contact with him.
14Ms. Romanowski sent a follow-up email on March 15, 2022, to Mr. Kaplun indicating that she has not heard from him and would appreciate a response to her email. A follow-up email was sent on March 16 and 17, 2022 indicating a date and time for his required attendance in this hearing in order to provide his testimony.
15On March 17, 2022, Mr. Kaplun confirmed that he must first speak to the respondent’s counsel.
16Ms. Romanowski sent another email on March 28, 2022 to Mr. Kaplun indicating that his attendance was required on March 29, 2022 at 3:30 pm.
17Mr. Schrieder advised the Tribunal that he, at some point far in advance of March 28, 2022 hearing date, confirmed that he spoke to Mr. Kaplun, and asked him the details of the allegedly served summons. Mr. Schrieder advised the Tribunal that he told Mr. Kaplun that he didn’t think it was a valid summons, but he should seek legal advice.
18On March 29, 2022, at 3:30 pm, Mr. Kaplun did not appear before the Tribunal for his testimony. Ms. Ismail advised that she would be preparing a brief and a motion for the Tribunal to state a case to Divisional Court for contempt of court.
19On March 30, 2022, at 10:00 am, Mr. Schrieder advised the Tribunal that he spoke to Mr. Kaplun last night and he explained the impact of the applicant’s motion and discussed the potential repercussions of his non-attendance.
20Mr. Kaplun agreed to attend the hearing and he testified before this Tribunal on March 30, 2022, the last hearing day.
21Mr. Kaplun in his testimony explained that he did not speak to anyone from Campisi LLP because they did not hire him. He testified that Mr. Schrieder did not give him advice but indicated that if he was not served personally then it was not a valid summons.
ANALYSIS
22The applicant alleges that Mr. Schrieder, as counsel and therefore an officer of the court, violated the article 5.1-2 (j) of the Rules of Professional Conduct by “improperly dissuad[ing] a witness from giving evidence or advis[ing] a witness to be absent”. The applicant also alleges that Mr. Schrieder’s conduct, when he poked fun at a line of questioning and possible “jail time” if found guilty of contempt, is also worthy of referral to the Divisional Court. The applicant alleges that Mr. Schrieder knew he was in control of Mr. Kaplun and did nothing to encourage his attendance. As such, the applicant asks me to refer this matter to Divisional Court to decide whether contempt of court has occurred.
23Mr. Schrieder argues that his behaviour does not meet a prima facie case for contempt. Although he agrees his use of descriptive words should have been avoided, having used the term “bogus” referring to a line of questioning the applicant’s counsel posed to Mr. Kaplun, still does not amount to contempt of this Tribunal. Mr. Schrieder argued that he did not tell Mr. Kaplun not to cooperate with Campisi LLP, but he also did not have an obligation to encourage him to cooperate with them either.
24Section 13 of the Statutory Powers and Procedures Act (SPPA) allows me to state a case to Divisional Court so that the court may inquire and decide whether that person is guilty of contempt of court. In this case, the applicant relies on s. 13 (1) (c) of the SPPA: “Where any person without lawful excuse, does any other thing that would, if the tribunal has been a court of law having power to commit for contempt, have been contempt of that court,…” in characterizing the conduct of Mr. Schrieder.
25My role is not to decide whether contempt of court has occurred, but to decide whether the applicant has established a prima facie case that this matter ought to be referred to Divisional Court for a decision.1
26The Court of Appeal held at paragraph 144 of R. v. Elliott:2
Contempt of court implies conduct that is calculated to obstruct or interfere with the due course of justice or the lawful process of the courts. It is conduct that seriously interferes with, or obstructs, the administration of justice. …
27I must also carefully consider the seriousness of this allegation:
The power of a superior court to cite a person for contempt of court is a very important power but it is to be used with restraint. It is a serious matter to threaten anyone, let alone an officer of the court, with contempt of court.3
28In order to establish a prima facie case, the alleged contempt of court must be obvious at first sight or first impression. The applicant must establish a prima facie case that Mr. Schrieder’s conduct was seen to obstruct or interfere with justice or the lawful process of this Tribunal.
29I do not see that Mr. Schrieder’s conduct establishes a prima facie case for contempt. I find the conduct of Mr. Schrieder very uncooperative in assisting Campisi LLP in obtaining the compliance of Mr. Kaplun in testifying in this hearing. In my opinion, Mr. Schrieder ought not to have provided his opinion on whether the summons was served properly, rendering it potentially invalid, but should have limited his response to Mr. Kaplun solely to seek his own legal advice or refer him to Campisi LLP. The conversation between Mr. Schrieder and Mr. Kaplun may have given the impression to Mr. Kaplun that there may not have been an obligation to attend, but I cannot say the conversation at first glance was a calculated or deliberate attempt by Mr. Schrieder to obstruct or interfere with justice.
30In any event, the fact that Mr. Schrieder encouraged Mr. Kaplun to attend, albeit late, rectified any misunderstandings.
31With regards to Mr. Schrieder’s sarcastic comments, contempt of court can also occur if an order is violated. After Mr. Schrieder’s comments, Ms. Ismail asked the Tribunal to warn Mr. Schrieder about his use of words. I cautioned his characterization of Ms. Ismail’s line of questioning, and any mocking remarks were not repeated.
32If Campisi LLP feels that Mr. Schrieder violated the Rules of Professional Conduct, then they may file a complaint with the Law Society.
33In this case, I cannot see how Mr. Schrieder’s conduct either with the witness or by his sarcastic remarks establishes a prima facie case that this matter ought to be referred to Divisional Court for a contempt hearing.
34The motion is dismissed.
Released: April 12, 2022
Chloe Lester
Vice Chair
Footnotes
- McNaught v. Toronto Transit Commission, 2005 CanLII 1485 (ON CA)
- 2003 CanLII 24447 (ON CA)
- R. v. Elliott, 2003 CanLII 24447 (ON CA)