Manweel Dankha v. Intact Insurance Company, 2023 CanLII 62892

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 21-013046/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:

Manweel Dankha

Applicant

and

Intact Insurance Company

Respondent

ORDER

Order made by: Theresa McGee, Vice-Chair

Date of Order: July 11, 2023

OVERVIEW

1Manweel Dankha, the applicant, was involved in an automobile accident on July 26, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2On March 8, 2022, the Tribunal held a case conference, and the matter was ordered to proceed to a written preliminary issue hearing. The parties filed their submissions and evidence in 2022. In reviewing those submissions, the Tribunal identified a procedural concern as to whether the applicant’s representative is authorized to act in this matter. This order addresses that procedural matter.

ANALYSIS AND REASONS

3Law Society of Ontario (LSO) By-Law 4 prohibits any Class P1 licence-holder (i.e., a paralegal) from acting in statutory accident benefits matters under the Insurance Act, RSO 1990, c I 8, where the claimant is, or appears to be catastrophically impaired. Rule 3.02(3) of the Paralegal Rules of Conduct prohibits a paralegal from undertaking or providing advice with respect to a matter that is outside their permissible scope of practice.

4The LSO Directory lists the applicant’s representative, Mr. Nilo Grabar, as a Class P1 licence-holder. The application presently before the Tribunal includes a dispute as to whether the applicant is catastrophically impaired. On October 21, 2022, Mr. Grabar filed written submissions on the preliminary issue.

5On June 20, 2023, the Tribunal wrote to the parties in this matter asking the following questions:

a. Is the applicant’s representative acting within the permissible scope of practice for a Class P1 licence-holder as set out in the Law Society of Ontario’s By-Law 4 and the Paralegal Rules of Conduct?

b. If the applicant’s representative is unauthorized to act in this matter, how should the Tribunal proceed?

6The respondent did not reply to the Tribunal’s request. Ms. Crystal Watson of Centennial Law Group replied on behalf of the applicant that at the time Mr. Grabar filed the preliminary issue submissions, he was authorized to communicate and submit documents under the advisement of Mr. Gerry Falletta, former counsel of record in the matter. Ms. Watson advised that Mr. Falletta oversaw Mr. Grabar’s handling of the file, and that the applicant had personally requested Mr. Grabar’s direct involvement in his case. Ms. Watson advised that she recently took carriage of the file and asked that the preliminary issue hearing proceed as scheduled.

7There is little evidence that Mr. Grabar was supervised by a lawyer in this proceeding. First, although Mr. Falletta attended the case conference in this matter along with Mr. Grabar on March 8, 2022 where the issue of catastrophic impairment was added, the Tribunal’s records contain no Declaration of Representative from Mr. Falletta in association with this file. Nor has Ms. Watson filed a Declaration of Representative. Second, Mr. Grabar is listed as the applicant’s representative in the application. Mr. Grabar is listed as the applicant’s representative on the Case Conference Summary form, and Mr. Grabar’s name appears on the cover to the “Schedule A” to the Case Conference Summary. Mr. Grabar’s name alone is on the written submissions in the preliminary issue hearing. Third, neither Mr. Falletta nor Ms. Watson appear to be named anywhere in the evidentiary record. All correspondence in evidence sent on behalf of the applicant to the respondent was sent by Mr. Grabar or his legal assistant. Dr. Alyman’s Psychological Consultation Report of December 31, 2020 also lists Mr. Grabar as the applicant’s “lawyer”.

8Even if I were to accept the representations made by Centennial Law Group, the explanation offered by Ms. Watson does little to resolve the Tribunal’s concern that Mr. Grabar is acting outside his scope of practice. The requirements for lawyers assigning tasks and functions to paralegals in relation to catastrophic impairment claims are found in Section 5.1 of LSO By-Law 7.1. The By-Law permits paralegals to participate in mediation of ancillary issues relating to the catastrophic impairment claims under a lawyer’s supervision. The By-Law is explicit that ancillary issues do not include issues relating to catastrophic impairment determination.

9The LSO’s By-Laws and Rules are clear: lawyers cannot assign tasks and functions to a paralegal in a hearing before the Tribunal where catastrophic impairment is in dispute. Even if I were to accept Ms. Watson’s representations to the Tribunal that Mr. Grabar was supervised at all relevant times by Mr. Falletta, Mr. Grabar would still be unauthorized to represent the applicant in this matter. The Tribunal cannot condone a violation of the LSO’s Rules and By-Laws. Consequently, I am left with no option but to strike the written submissions prepared by Mr. Grabar from the record and to remove him as representative of record in this matter. I make these orders under s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 to protect the integrity of the Tribunal’s process. As Centennial Law Group has highlighted in its response to the Tribunal in this matter, the applicant has significant vulnerabilities. It is precisely the vulnerability of the applicant, whose claim for catastrophic impairment determination hangs in the balance in the preliminary issue hearing, that warrants this pause in the proceedings. Because the preliminary issue could finally dispose of the applicant’s claim, he should be given the opportunity to retain a representative who is authorized and competent to advise and represent him.

10The applicant will have 30 days to retain a properly licenced representative capable of acting in this matter (i.e. a lawyer with a Class L1 licence) and to re-file submissions on the preliminary issue by the deadline below. The applicant may choose to proceed without representation. The applicant may also wish to obtain independent legal advice.

11The respondent may rely on the submissions it has already filed on the preliminary issue. If the respondent wishes to file reply submissions, it may do so according to the deadline in my order below.

12If the applicant does not file submissions or request an extension by the filing deadline, the Tribunal will proceed to adjudicate the preliminary issue based solely on the respondent’s submissions.

ORDER

13The Tribunal hereby strikes the submissions submitted on behalf of the applicant by Mr. Grabar on October 21, 2022 from the record.

14Mr. Grabar is ordered removed as the applicant’s representative of record in this matter.

15The applicant shall exchange and file written submissions, which shall be no more than 10 pages in length, no later than August 10, 2023. If the respondent intends to exchange and file written reply submissions, it may do so no later than August 15, 2023. The reply submissions shall be no longer than 5 pages.

a. Submissions and/or documents/authority briefs, if any, shall be double spaced, 12 point, Arial or Times New Roman font and be indexed, bookmarked/tabbed and consecutively page numbered.

b. Submissions shall make specific reference to the evidence and law by tab and page number. Evidence not so referenced may not be reviewed.

16Except for the provisions contained in this Order, all previous orders made by the Tribunal remain in full force and effect.

17If the parties reach an agreement on the issues in dispute, the applicant shall immediately advise the Tribunal in writing.

18I am not seized of this matter.