Licence Appeal Tribunal File Number: 20-009044/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:
Patrick Dao
Applicant
and
Cooperators General Insurance Co.
Respondent
DECISION
ADJUDICATOR: Lyndra Griffith
APPEARANCES:
For the Applicant: Patrick Dao, Applicant (Not Present)
For the Respondent: Emily Schatzker, Counsel
HEARD: In Writing July 6, 2023
OVERVIEW
1Patrick Dao, the applicant, was involved in automobile accidents on December 14, 2018 and May 7, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Cooperators, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A two-day hearing was scheduled to begin on January 27, 2022 on the issues of the applicability of the Minor Injury Guideline, and entitlement to non-earner benefits and medical and rehabilitation benefits.
3The hearing was adjourned on two separate occasions and the most recent adjournment was granted on July 29, 2022. On July 27, 2022, the applicant filed a request to adjourn the hearing scheduled to commence on August 2, 2022 due to an unexpected and sudden departure of his lawyer due to a medical emergency and there are no other lawyers available. The adjournment was granted, and it was marked peremptory on the applicant. The Tribunal ordered that no further adjournment requests from the applicant will be considered. A new hearing was set for November 29, 2022 and on August 16, 2022, the Tribunal received an email from the applicant's representative withdrawing themselves from the record.
4On November 25, 2022 the applicant notified the Tribunal by email to advise that he did not have counsel and that he asked the respondent for an "extension" so that he could get all his documents together to represent himself. He was notified by the Tribunal that day that he would need to attend the hearing and request an adjournment at the hearing if necessary.
5At the hearing, the applicant did not attend. The applicant's daughter attended on his behalf to notify the Tribunal that the applicant was unable to attend due to unforeseen circumstances. No other information was provided. The matter was stood down for 45 minutes to allow the applicant to attend. The applicant did not make any written submissions on this matter. The Tribunal attempted to contact the applicant but was unsuccessful. As a result of the applicant not providing any submissions or evidence for the purpose of the hearing, the applicant did not meet his burden of proving entitlement to the benefits in dispute.
6In a decision dated February 7, 2023, I found that the applicant was not entitled to the benefits being claimed as he had failed to attend the hearing and did not present a case to support his entitlement. Despite the Tribunal’s attempts to contact the applicant, he failed to respond to the Tribunal.
7However, at the hearing, the respondent sought to add the issue of costs in accordance with Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended ("Rules"). Rule 19 allows the Tribunal to consider a request for costs at any time prior to the release of the Tribunal's decision. I agreed to add this issue to the issues in dispute and ordered a timetable for the submissions of both parties. Only the respondent provided submissions on costs.
ISSUES
8The issue in dispute is whether the respondent is entitled to costs.
RESULT
9I find that the respondent is entitled to costs in the amount of $409.06 against the applicant, the cost incurred by the respondent for court reporting services.
ANALYSIS
The respondent is entitled to costs
10Rule 19.1 of the Rules states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may make a request to the Tribunal for costs.
11Section 19.5 of the Rules outlines the relevant factors which should be considered by the Tribunal when determining whether to order costs and the amount of costs to be awarded, which include the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system. Section 19.6 allows for a maximum of $1,000.00 for each full day of attendance at a motion, case conference or hearing.
12The respondent states that pursuant to the Notice of Videoconference Hearing dated August 26, 2022, the LAT hearing was later scheduled for November 29 and 30, 2022. By way of email correspondence dated November 22, 2022, the applicant advised the respondent's counsel that he had not been able to obtain a legal representative fully as he was out of the province. He further advised that he would represent himself at the hearing.
13The respondent submits that the applicant advised the respondent's legal representative that he would appear for the hearing. However, he failed to appear and did not provide a reasonable explanation for his non-attendance. As a result, the respondent spent counsel and preparation time that could have been avoided. The respondent states that it incurred $1,612.00 in preparation fees. It further incurred a total of $1,012.00 in further preparation, attendance and post-hearing reporting fees. The respondent also incurred court reporter fees in the amount of $409.66.
14The respondent relies on Bablak v. Gore Mutual Insurance Company, 2022 46858 (ON LAT). The respondent submits that the applicant engaged in serious misconduct by failing to appear for the hearing. The respondent submits that the applicant having his daughter attend at the outset to advise of his absence due to "unforeseen circumstances" without providing any explanation or detail whatsoever frustrated the Tribunal’s ability to conduct a fair, efficient hearing.
15The respondent submits that a day of time was wasted with respect to attempts to obtain productions and preparing for a hearing that the applicant failed to attend despite receiving sufficient notice and being granted multiple adjournments by the Tribunal to allow him to secure representation.
16The respondent further submits that it suffered significant prejudice due to the applicant's conduct with respect to the above. The applicant breached all of the production orders, which compromised the respondent’s ability to mount an effective defence. In addition, the applicant led the respondent and the Tribunal in thinking that the applicant would attend the hearing. As a result, the respondent spent monies for preparation and counsel time, which turned out to be unnecessary.
17The respondent submitted its invoice in the amount of $409.06 for court reporting services.
18The applicant did not make any submissions.
19I find that the applicant acted unreasonably in not appearing at the hearing despite telling the respondent’s counsel that he would be representing himself and despite the Tribunal advising him that no further adjournments would be granted and he had to attend the scheduled hearing. The applicant sent his daughter to appear in his place but she did not provide any information about his whereabouts or the circumstances relating to his non-attendance. The respondent clearly incurred costs in preparing for this hearing and incurred disbursement costs for court reporting services.
20The applicant acted unreasonably in the process, which caused prejudice to the respondent. I order costs of $409.06 against the applicant, the cost incurred by the respondent for court reporting services.
ORDER
21I find that the respondent is entitled to costs in the amount of $409.06.
Released: August 4, 2023
__________________________
Lyndra Griffith
Adjudicator