Licence Appeal Tribunal File Number: 20-000279/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Roland Spiegel
Applicant
and
Intact Insurance Company
Respondent
HEARING DECISION AND ORDERS1
ADJUDICATOR:
Sandra Driesel
APPEARANCES:
For the Applicant:
Roland Spiegel, Self-represented Applicant
For the Respondent:
Jasmina Mrkalj-Skelly, Counsel
Michael Bailey, Articling Student (Observing)
HEARD: by Videoconference:
January 23-25, 2023
OVERVIEW
1The applicant, Roland Spiegel, represented himself at this hearing. The respondent, Intact Insurance Company, was represented by counsel. There was no representative from Intact Insurance Company present. There was no court reporter for this hearing.
2The applicant was involved in three automobile accidents:
On October 30, 2009 (“MVA.1”) for which he sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “1996 Schedule”);
On October 18, 2011 (“MVA.2”) for which he sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”); and
On May 6, 2019 (“MVA.3”) for which he sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule).
PRELIMINARY ISSUES
3The applicant currently has four applications before the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) related to the above MVAs. The applicant and the respondent have a lengthy history of proceedings before the Tribunal. They have engaged in approximately 32 events, such as motion and preliminary issue hearings, case conferences and reconsideration requests. Because of this, certain substantive issues had been erroneously combined or duplicated amongst the applications in the past.
4The hearing with respect to file 20-000279/AABS is currently before me today. As part of this hearing and with submissions of the parties, I dealt with sorting out all of the other outstanding issues and determining which MVA and file number each issue applied to. The purpose of this exercise was to avoid future confusion and duplication of efforts (as history has shown, not only the parties, but adjudicators have dealt with a repetition of same issues and arguments) and to outline how to best move any outstanding files forward.
5The Tribunal files I considered are:
Date filed
Date of MVA
Status as of January 23, 2023
Next steps
20-000279/AABS
2020-01-15
2009-10-30 (MVA.1)
Hearing commenced before me on January 23, 2023
Decision found below
20-000408/AABS
2020-01-20
2011-10-18 (MVA.2)
Issues mistakenly included with 20-000279/AABS Hearing
See Order in APPENDIX ‘A’
21-002468/AABS
2021-02-26
2011-10-18 (MVA.2)
Disposed of after hearing on July 11, 2022
No further action required
21-006907/AABS
2021-06-03
2019-05-06 (MVA.3)
To be scheduled to hearing
See Order APPENDIX ‘B’
6For greater clarity, the following is my hearing decision for File Number: 20-000297/AABS. However, attached to this decision, are appendices which contain Orders related to the outstanding files: 20-000408/AABS and 21-006907/AABS. File 21-002468/AABS is closed.
Tribunal File Number: 20-000279/AABS
ISSUES IN DISPUTE
7As confirmed by the parties, the issues to be decided at this hearing are:
Is the applicant entitled to $5,578.26 for medical cannabis recommended by Dr. H. Moller in a treatment plan submitted on November 11, 2019, and denied on January 2, 2020?
Is the applicant entitled to an expense of $200.00 for the completion of a medical form (submitted on an OCF-6 expense claim form) submitted on November 11, 2019, and denied on January 2, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the respondent entitled to costs because the applicant has acted unreasonably frivolously, vexatiously, or in bad faith in this proceeding?
Added/Reassigned/Resolved issues
8As a result of a telephone conference held on July 19, 2022, Adjudicator M. Beauchesne originally ordered 8 issues to be heard today. Adjudicator M. Beauchesne’s order included items numbered 1-4 above. Item number 5 above was added at the hearing, as it had erroneously been omitted from the order but included in several preliminary motions.
9Issues number 3, 4 and 8 in Adjudicator M. Beauchesne’s order were reassigned to Tribunal file 20-000408/AABS as it became apparent that is where they belonged. Issues 3 and 8 were eventually dismissed.
10Issue number 5 from Adjudicator M. Beauchesne’s order was a duplicate and was therefore deleted.
RESULT
11The applicant’s claims for accident benefits, interest and an award are dismissed.
12The respondent is awarded costs in the amount of $2,500.00.
ANALYSIS
Is the applicant entitled to the cost of medical cannabis?
13The applicant states he has been prescribed medical cannabis to treat his chronic pain. He explains that he suffered a 2003 slip and fall accident and that by the time of the MVA.1 in October 2009, he had successfully recovered at about 50% from impairments sustained in that fall. He claims the MVA.1 worsened his pre-existing injuries.
Is the treatment plan recommended as a result of injuries sustained in the accident of October 30, 2009 (MVA.1)?
14The applicant argues that the slip and fall accident, MVA.1 and subsequent MVAs cumulatively resulted in his chronic pain condition. He believes it is not possible to separate the impairments from each accident to recommended treatment plans. Further to this, the applicant believes the drugs he had been prescribed from 2003 to date, have resulted in an addiction to drugs such as oxycodone and Tylenol 3. He believes that cannabis is not only a better treatment for his pain but enables him to ween off the pain killers he has been prescribed over the years. He submits the OCF-18 from Dr. Moller supports the use of cannabis and the fact that his family doctor, Dr. Zatzman, has provided him with prescriptions for cannabis proves that it is reasonable and necessary for treating the injuries sustained in the MVAs. He cannot, however, provide any evidence that any doctor related the need for this treatment specifically to the MVA.1.
15The respondent takes the position that, as indicated in many medical reports in evidence, the applicant acknowledges returning to most of his activities of daily living after MVA.1. In his own statement, the applicant admits to returning to work after the MVA.1 because he was self-employed. The respondent submits that because the MVA.1 occurred in 2009 and there were two subsequent MVAs prior to this claim for cannabis in November 2019, it is most likely that the cannabis treatment is not related to the subject MVA.1 and the applicant is claiming the cannabis treatment on other MVA files.
Is the OCF-18 for the cannabis treatment completed by a health care professional or the applicant himself?
16The respondent presented evidence that the OCF-18 submitted by the applicant might not have been completed by Dr. Moller and as there are no clinical notes and records from Dr. Zatzman to support this treatment, the respondent questions the treatment plan as being recommended by any health care professional. The respondent provided copies of three different OCF-18’s that were submitted to the insurer for the cannabis treatment in dispute. The three revisions include a change in the treatment amount from $929.71 to $5,578.26.
17The respondent provided evidence to show the applicant has a history of fraudulent behaviour and that his paralegal licence was revoked because he completed insurer forms himself and made false claims. The OCF-18s submitted for this treatment were completed by Pro-Act Medical and Rehabilitation Services, which is the applicant’s company, and he is the sole proprietor.
18The applicant defends his completion of the form and the changes stating that Dr. Moller was not on HCAI (Health Claims for Auto Insurance electronic system for transmitting insurance claims) and therefore, through his company, he submitted the OCF-18s on the doctor’s behalf. He explains the change in the amount is because the $929.71 was for a one-month period and it should have been for a six-month period. He could not however provide an explanation as to why items were covered with white-out, why signatures appear different on the forms or why the address given for Dr. Moller was in fact the applicant’s address.
19Unfortunately, Dr. Moller is deceased and there is nothing in any clinical notes and records he had provided to the insurer that supports a recommendation for cannabis in the form or quantity the applicant is claiming. Although the applicant maintains the treatment to be endorsed by Dr. Zatzman, this doctor was not called as a witness, nor did he provide his clinical notes and records to support the cannabis treatment included in these OCF-18s. What the applicant refers to as a “prescription” is actually the order authorizing the purchase of medical cannabis. The form is incomplete, lacking detail as to what the cannabis is recommended for and provides no detail to suggest it relates to impairments resulting from an MVA.
Is there evidence that the suggested cannabis treatment is reasonable or necessary?
20Given the questionable status of the OCF-18, I looked for any evidence that might suggest this treatment was recommended by a health care professional for injuries sustained in the subject accident. The applicant offered no further evidence except his own opinion.
21The respondent was able to show several medical reports, even those submitted by the applicant’s assessors. One reference suggested cannabis treatment as a third line option after having tried other, more recommended plans and even as an option, this is not the type of treatments or dosage recommended in the OCF-18s. There are notations suggesting a very limited trial period with a cannabis-based pill, in a minimal dose. There are no reports inferring the cannabis treatment as recommended in the OCF-18 is supported by any of his treating physicians or any assessors he consulted with.
22Overall, I find the applicant has failed to provide evidence that this cannabis treatment is reasonable or necessary for any impairment sustained in the subject accident.
Is the applicant entitled to interest?
23Because the applicant was found not to be entitled to the payment of the benefits in dispute, the request for interest is dismissed.
Is the respondent liable to pay an award under to the applicant?
24Under s. 10 of Reg. 664, the respondent may be required to pay an award of up to 50% of the benefits and interest owed if I find that the respondent unreasonably withheld or delayed the payment of benefits to the applicant. As I have determined that the applicant is not entitled to any of the benefits in issue, it is not necessary for me to consider his claim for the award. I must note, I do not find the respondent engaged in any conduct that would have merited an award. The claim for an award is dismissed.
Is the respondent entitled to costs?
25Rule 19 of the Common Rules states where a party believes that another party in the proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs. “Proceeding” means the entire Tribunal process from the start of an application (in this case January 15, 2020) to the time a matter is finally resolved.
26The respondent has testified to the applicant’s continued behaviour that has resulted in extreme delays and an inability to litigate the proceedings before the Tribunal. It further agues that it has prejudiced the insurers’ ability to correctly assess the applicant’s treatments in dispute with any efficiency.
27In most proceedings before this Tribunal, the Superior Court and in proceedings before other disciplinary Boards and Tribunals, the applicant has represented himself. During this proceeding, the applicant presented as physically tired on occasion, but for the most part, he was an alert participant. The applicant introduced himself as a retired professional once involved in healthcare assessments with a vivid knowledge of the Schedule. His constant interruptions or repetitive arguments were given some leniency because he was self-represented, but when continually reminded of acceptable behaviour during the hearing process, the applicant routinely excused his disruptive actions as a result of being tired, ill and “frustrated by a system that lets him down and does not enable him to tell his side of the story”. The history of this application and related applications shows the applicant has been given an extraordinary number of opportunities to “tell his story”. He is aware of and exercises his rights through motions, requests for reconsideration and appeals to the Superior Court of adjudicator’s orders or decisions where he believes his story was not told or understood.
28Evidence was presented to show the applicant has been found guilty of fraudulent behaviour including filing inaccurate documents with insurers and using signature stamps of professionals without authorization. As a result, his paralegal license was revoked. During these proceedings the applicant admitted to the same behaviour. He admitted to completing the OCF-18 forms and OCF-21 form on his own and “on behalf of the doctor” whose name appears on the forms. He admits his attempt to bill the insurer for expenses on behalf of the doctor and that he was never actually billed for these same expenses. He casually ignores the serious impact of his actions as he minimalizes what he has done.
29His repeated failure to attend Insurer Examinations (IEs) related to specific types of treatment has circumvented many efforts to resolve the issues in dispute. Despite many decisions of the Tribunal or Superior Court, the applicant seemingly ignores any decision maker’s inference that his arguments delaying attendance to IEs are without substance and he should attend them in order to have the matters proceed. I agree with the comments in the Tribunal decision of Vice Chair Flude dated August 26, 2022, that though “Intact did not argue that this [failure to attend IEs] was an abuse of process, it bears all the hallmarks” of it. I also agree with Master J. Josefo’s findings in his decision in relation to the applicant’s failure to attend IEs, that “the prejudice to the defendant [Intact] is not only presumed, it is real.” I believe the history of events related to this application shows a continual effort by the respondent to accommodate the applicant while he continues to act in bad faith, feigning an intention to comply while failing to do so to date.
30For these reasons, I find the respondent is entitled to costs from the applicant. I find that the applicant has acted frivolously, vexatiously, unreasonably and in bad faith through his actions of:
i. Continually delaying the insurer’s ability to assess the file through his non-compliance to attend IEs; and
ii. Knowingly manipulating evidence for the purpose of unfairly persuading a decision maker, with a complete disregard for the law and the Tribunal’s processes.
31In accordance with Rule 19.6, the respondent may request $1,000.00 per day for the attendance at a motion, case conference or hearing in a proceeding. The costs requested by the respondent were for the three days of this hearing. Accordingly, I find it appropriate to award the respondent $2,500.00 in costs based on the following calculation:
i. Attendance January 23, 2023 = $1,000.00
ii. Attendance January 24, 2023 = $ 500.00 hearing commenced at 13:00)
iii. Attendance January 25, 2023 = $1,000.00
Total award for costs: $2,500.00
ORDER
32The applicant’s claims for accident benefits, interest and an award are dismissed.
33The respondent is awarded costs in the amount of $2,500.00.
Released: March 15, 2023
Sandra Driesel
Adjudicator
APPENDIX ‘A’
ORDER
Licence Appeal Tribunal File Number: 20-000408/AABS
OVERVIEW
1The parties agree that file 20-000408/AABS should not have been combined with file number 20-000279/AABS and should be heard separately.
2The applicant has failed to attend the s.44 IEs required for the insurer to assess the issue in dispute with respect to this application.
3Following submissions by the parties I issued the following orders, all on consent unless noted below:
ISSUES IN DISPUTE
4The issues to be decided are:
Is the applicant entitled to $11,589.30 for other goods and services (i.e. technology-enhanced multimodal mediation (“TEMM”) stress reduction therapy system and complete integrated brainLight-4D Shiatsu massage chair), proposed by Dr. Henry Moller in a treatment plan submitted on December 9, 2019, and denied on December 23, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the respondent entitled to costs because the applicant has acted unreasonably frivolously, vexatiously, or in bad faith in this proceeding?
Added/Resolved issues
5The following issue has been dismissed and the applicant agrees that he is precluded from disputing this expense:
- Is the applicant entitled to $200.00 for the OCF-18 form completion fee, submitted on an Auto Insurance Standard Invoice (“OCF-21”) November 11, 2019, and denied on January 2, 2020?
6After considering the submissions by the parties, I found the OCF-21 failed to comply with the Schedule in that it was not completed by Dr. Moller, who completed the related OCF-18. The applicant completed the OCF-21 himself through his own, sole owner proprietor business, Pro-Act Medical and Rehabilitation Services. This OCF-21 form was stamped to be made “payable directly to the applicant.”
7The applicant argues he completed this OCF-21 in anticipation of receiving a bill from Dr. Moller who completed the OCF-18. He admits he has not been billed and that he has not paid the $200.00 to the doctor. Given the evidence that Dr. Moller is deceased, it is unlikely that three years after the completion of the OCF-18, his estate would request these funds (as the applicant expressed his intent is to forward the $200.00 to the doctor’s estate if he did not receive a bill).
8The following issue has been withdrawn at the request of the applicant:
- Are all of the applicant’s claims for expenses in dispute deemed to have been incurred pursuant to s. 3(8) of the Schedule?
9The applicant submits that he had this issue added as a basis of argument for the entitlement of the previous issue ($200.00 for the OCF-21). That issue has been dismissed and accordingly, he agreed to withdraw this issue.
10The applicant’s request to add the following two issues is denied as they were already included in application 21-002468/AABS and dealt with in a Tribunal decision released on August 26, 2022:
Is the applicant entitled to $4,900.00 for Platelet-Rich Plasma injections for his shoulder?
Is the applicant entitled to $4,900.00 Platelet-Rich Plasma injections for his hip?
11The parties have been advised that no further issues will be added to this application.
CASE CONFERENCE RESUMPTION (20-000408/AABS)
12This matter will proceed to a telephone case conference on a date to be set by the Tribunal. The Tribunal will contact the parties to set the date and time. Once set, the date and time is peremptory on the parties to attend.
13The purpose of this case conference is to confirm compliance with the order below and to explore settlement of the issues in dispute. If necessary, the parties will address the hearing format and any details for an efficient hearing.
ORDER
14By no later than 30 calendar days prior to the scheduled case conference date, the applicant must have attended any scheduled s. 44 IEs required for the respondent to assess the treatment plan in dispute listed as issue 1 above.
15If the applicant failed to attend the IE(s), the Tribunal will consider dismissing this application without a hearing pursuant to Rule 3.4 and 3.5 of the Tribunal’s Common Rules. The Common Rules provide that a dismissal without a hearing is appropriate if the Tribunal determines the appeal is frivolous, vexatious, or commenced in bad faith. This order shall serve as notice to the parties of the Tribunal’s intention to dismiss this appeal.
16The reasons for the intention to dismiss are based on the following:
i. The Tribunal Order dated July 19, 2021, by Vice-Chair Johal, pertaining to Tribunal files 20-000279/AABS and 20-000408/AABS, determined the respondent had provided the applicant with proper IE notice related to this application and that the applicant did not provide satisfactory explanations for his failure to attend. Vice Chair Johal concluded that the applicant should be precluded from disputing this treatment plan in accordance with s. 55(1) 2 of the Schedule until he attends the IE.
ii. Further to this, the applicant reasserted his argument regarding his failure to attend IE”s in another proceeding (Tribunal file 21-002468/AABS), related to this same MVA, In his Decision and Order dated August 26, 2022, Vice Chair Flude, in reference to the applicant’s lack of attendance, compared the applicant’s actions to of having all the hallmarks of “an abuse of process” and noted “the applicant made it clear he has no intention of attending the IE’s unless and until his demands are met.” Vice Chair Flude opined that “there is little point in giving him a further opportunity only for it to be squandered by further non-attendance at future IEs.”
iii. A Superior Court decision (found at Tab 30 of the Respondent’s evidence – an action brought by applicant) determined that the applicant’s actions in failing to attend IEs has prejudiced the respondent’s ability to correctly assess his file. The respondent has again attempted to cooperate with the applicant and to reschedule IEs. Prior to today’s proceeding, the applicant communicated his desire to reschedule the IE until after this hearing is completed (and I believe this to be because in the order by Adjudicator Beauchesne released August 5, 2022, this issue was intended to be heard through this hearing event). Again, during this proceeding he raised the issue of improper notice and assessor qualifications as a reason for his unwillingness to attend. I find that there is a pattern of behaviour by the applicant since January 2020, when this application was filed, that attempts to circumvent any process to resolve this issue. I also find that the applicant’s constant excuses for non-compliance while stating a willingness to cooperate for almost three years implies, he has no intention of fulfilling any obligation to attend the IEs. Therefore, his continuing with the application appears to be in bad faith.
17By no later 5 calendar days prior to the scheduled case conference date, the parties may make written submissions regarding the Tribunal’s intent to dismiss. The parties shall serve their submissions on each other and file them with the Tribunal according to the following parameters:
i. Submissions are limited to 5 pages and pages are to be consecutively numbered. The hearing adjudicator may not consider submissions which exceed the page limit, and
ii. Submissions shall be double-spaced, 12-point, Arial or Times Roman font.
18The hearing adjudicator will consider the written submissions at the scheduled case conference.
19The dismissal of the applicant’s application in whole or part does not preclude the respondent from proceeding with their request for costs in accordance with the Tribunal’s Rules.
APPENDIX ‘B’
ORDER
Licence Appeal Tribunal File Number: 21-006907/AABS
1The parties agree that the issues in this file should be scheduled separately from any other outstanding applications related to this applicant.
2The applicant has failed to attend the s. 44 IEs required for the insurer to assess the issues in dispute.
3Following submissions by the parties I issued the following orders, all on consent unless noted below:
ISSUES IN DISPUTE
4The issues to be decided are:
Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period May 1, 2019, to date and ongoing?
Is the applicant entitled to receive $1,125.00 temporomandibular (“TMJ”) treatment, recommended by Dr. Grushka in a treatment plan dated July 27, 2021, denied by the respondent on August 20, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the respondent entitled to costs because the applicant has acted unreasonably frivolously, vexatiously, or in bad faith in this proceeding?
Added/Resolved issues
5The following issues in dispute were added by Adjudicator S. Kepman at a case conference on January 11, 2021. I ordered that the applicant be precluded from further disputing these issues:
Is the applicant entitled to receive $6,432.00 for medical cannabis, recommended by Dr. Zatzman in a treatment plan dated March 19, 2021?
Is the applicant entitled to receive $6,432.00 for medical cannabis, recommended by Dr. Zatzman in a treatment plan dated October 29, 2021?
6I heard submissions from the parties regarding these two issues. The respondent advised the applicant there is no OCF-18 submitted in support of the treatment for either issue. The respondent has not denied paying the applicant as it has not accepted his submissions alone as proof of a recommended treatment plan by a health care professional.
7The applicant claims that he submitted “prescriptions” for each medical cannabis request and as such, they are payable under the Schedule. Without challenging the applicant’s interpretation of the Schedule, I reviewed the documents submitted to the insurer for payment of these two issues. The documents submitted to the insurer consisted of medical forms required to be completed by a health care practitioner to enable the purchase of cannabis, and quotes from a cannabis supplier advising the applicant of the costs of the cannabis-based oils he is requisitioning. Further, I found that those forms, supposedly completed by Dr. Zatzman, contained no reference to any specific drugs or cannabis, no reason for the recommendation of same and specifically no reference to indicate the approval document in any way was due to an impairment related to any MVA.
8The applicant argues that the document from Dr. Zatzman is proof that he is prescribing the cannabis and that the document is only valid for a six-month period. He argues that he has not obtained an OCF-18 because it would cost him $200.00 every six-months. He did admit however that there is nothing presented in the documentation that he provided that would link the treatment to his accidents and understands he requires an OCF-18 to support the purchase of this cannabis to establish it is reasonable and necessary for injuries sustained in a MVA. The applicant agreed to withdraw these issues with an agreement that he can resubmit a claim for payment of these two issues with the appropriate OCF-18 form completed by a health care professional.
9The parties have been advised that no further issues will be added to this application, except:
i. By no later than 30 calendar days from the release date of this Order, the applicant may re-submit the above two claims for medical cannabis, for the period between March 19, 2021 to March 29, 2022, on an OCF-18 completed and signed by a health care professional.
Note: The reason I have imposed a deadline for submissions is to provide the respondent an opportunity to validate and if necessary, take steps to determine whether the claims are reasonable and necessary, without any further delay in the hearing process.
CASE CONFERENCE RESUMPTION (21-006907/AABS)
10This matter will proceed to a telephone case conference on a date to be set by the Tribunal. The Tribunal will contact the parties to set the date and time. Once set, the date and time is peremptory on the parties to attend.
11The purpose of this case conference is to determine compliance with the order below and to explore settlement of the issues in dispute. If necessary, the parties will address the hearing format and any details for an efficient hearing.
ORDER
12By no later than 30 calendar days prior to the scheduled case conference date, the applicant must have attended any scheduled s. 44 IEs required for the respondent to assess the treatment plan in dispute listed as issue number 1 and 2. If the applicant has not attended the IE(s), the Tribunal may dismiss this appeal without a hearing.
13The Common Rules provide that a dismissal without a hearing is appropriate if the Tribunal determines the appeal is frivolous, vexatious, or commenced in bad faith. This order shall serve as notice to the parties of the Tribunal’s intention to dismiss this appeal based on the following reasons.
14The reasons for the intention to dismiss are based on the following:
i. The issue of the applicant failing to attend the IE related to the non-earner benefit was previously raised at a telephone case conference held with Adjudicator S. Kepman for this file.
ii. The applicant has established a pattern for failing to attend IEs in each application filed with the Tribunal: Tribunal Order dated July 19, 2021, by Vice-Chair Johal, pertaining to Tribunal files 20-000279/AABS and 20-000408/AABS, determined the respondent had provided the applicant with proper IE notice and that the applicant did not provide satisfactory explanations for his failure to attend. Tribunal order dated August 26, 2022, in Tribunal file 21-002468/AABS by Vice Chair Flude, in reference to the applicant’s lack of attendance, compares the applicant’s actions to having all the hallmarks of “an abuse of process” and notes the applicant made it clear he has no intention of attending the IEs unless and until his demands are met. Vice Chair Flude opined that “there is little point in giving him a further opportunity only for it to be squandered by further non-attendance at future IEs”. The applicant’s failure to attend the IE for the non-earner benefit was raised in the Tribunal order released on September 16, 2022, pertaining to Tribunal files 21-006907/AABS and 20-000579/AABS, by Adjudicator L. Jarda.
iii. A Superior Court decision (found at Tab 30 of the Respondent’s evidence – an action brought by applicant) determined that the applicant’s actions in failing to attend IEs have prejudiced the respondent’s ability to correctly assess his file. Again, the respondent has attempted to cooperate with the applicant and to reschedule IEs.
iv. I find that there is pattern of behaviour by the applicant since June 2021 when this application was filed, that attempts to circumvent any process to resolve this issue. I also find the applicant’s constant excuses for non-compliance while stating a willingness to cooperate imply he has no intention of fulfilling any obligation to attend the IEs. Therefore, his continuing with the application appears to be in bad faith.
15By no later 5 calendar days prior to the scheduled case conference date, the parties may make written submissions regarding the Tribunal’s intent to dismiss. The parties will serve their submissions on each other and file them with the Tribunal in accordance with the following:
i. Submissions will be limited to 5 pages and pages are to be consecutively numbered. The hearing adjudicator may choose not to consider submissions which exceed the page limit, and
ii. Submissions shall be double-spaced, 12-point, Arial or Times Roman font.
16The hearing adjudicator will consider the written submissions at the scheduled case conference.
17The dismissal of the applicant’s application in whole or part does not preclude the respondent from proceeding with their request for costs in accordance with the Tribunal’s Rules.