Licence Appeal Tribunal File Number: 22-002287/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:
Dilipkanth Chandrarajah
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Erin Neal, Counsel
For the Respondent:
Ryland MacDonald, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Dilipkanth Chandrarajah (the “applicant”) was involved in an automobile accident on August 24, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Economical Insurance (the “respondent”).
2The applicant passed away on June 3, 2020 due to causes unrelated to the accident.
3On February 25, 2022, the applicant’s counsel applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. There is no indication on the Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act that the applicant is deceased.
4At the start of the case conference held on December 20, 2022, the applicant’s counsel informed the respondent and the Tribunal that the applicant is deceased and that the applicant’s spouse would be in attendance on behalf of the applicant. Neither the applicant’s counsel nor the respondent had any documentation in their possession regarding the applicant’s will, estate, or named beneficiary.
5The applicant’s counsel requested to adjourn the case conference to allow time to gather the necessary documentation. The Tribunal denied the adjournment request as the applicant passed away on June 3, 2020, and the application was submitted on February 25, 2022, which means that the applicant’s counsel had had more than nine (9) months to request the documentation from the applicant’s family.
6The application was subsequently scheduled to proceed to a written hearing on September 8, 2023. Although no estate trustee was appointed to act on behalf of the deceased applicant, the applicant’s counsel filed written submissions and evidence as well as reply submissions for the hearing. The respondent filed responding submissions and evidence.
ISSUES
7The issues in dispute are:
- Is the applicant entitled to physiotherapy services proposed by Gibson Wellness Centre, as follows:
i. $7,041.67, in a treatment plan/OCF-18 (“treatment plan”) submitted January 8, 2020 and denied February 26, 2020;
ii. $6,141.80, in a treatment plan submitted January 15, 2020 and denied February 26, 2020; and
iii. $6,702.67, in a treatment plan submitted May 7, 2020 and denied May 26, 2020?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
8The respondent also introduced in its written hearing submissions a claim for costs against the applicant.
RESULT
9For the reasons that follow, I find that:
The application was not properly constituted and is an irremediable nullity.
It is unnecessary for me to consider the deceased applicant’s entitlement to the disputed treatment plans, interest, and an award as neither the applicant nor an estate trustee acting on his behalf pursued this claim for accident benefits. To continue the application in the circumstances would be an abuse of process.
The respondent is not entitled to costs.
10The application is dismissed.
ANALYSIS
Procedural Issue
11In its written hearing submissions, the respondent raised a procedural issue. The respondent submits that since the applicant is deceased and that no estate trustee has been appointed, the application is not legally viable as there is no authority on which it can proceed. Further, the respondent argues that, in the circumstances, the application was not properly commenced. As such, the respondent requests that the application be dismissed on the basis that it is vexatious.
12The respondent relies on Kanthasamy Karthigesu v. Wawanesa Mutual Insurance Company, 2016 ONFSCDRS 269, Jamil Toma v. State Farm Mutual Automobile Insurance Co., 2014 ONFSCDRS 171 [Toma], The Estate of Delia Arnold v. Cumis General Insurance Company, 2017 ONFSCDRS 336, and Paata Chechelashvili v. Jevco Insurance Company, 2016 ONFSCDRS 189.
13In response, the applicant’s counsel submits that this issue cannot be considered as it was not addressed at the case conference, and that raising this issue at this stage is indicative that the respondent is acting in bad faith. The applicant’s counsel further submits that dismissing the application would be highly prejudicial to the deceased applicant and asserts that this is a very sensitive matter for the applicant’s surviving spouse. The applicant’s counsel also denies that the application was not properly commenced and submits that it was filed to protect the limitation period.
14In the circumstances, I am prepared to consider the procedural issue raised by the respondent. I find that it falls within my discretion to determine whether to consider the procedural issue raised by the respondent. It is well established that the Tribunal has the power to determine its own procedures and practices and may for that purpose make orders with respect to the procedures and practices in a particular proceeding. Further, the Tribunal may make such orders or gives such direction in proceedings before it as it considers proper to prevent abuse of its processes [see: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), ss. 23(1) and s. 25.0.1].
The application was not properly constituted, and it is an irremediable nullity
15I find that the respondent has demonstrated, on a balance of probabilities, that the application was not properly constituted, and that it is an irremediable nullity.
16In Toma, an application for arbitration was commenced by a deceased insured’s counsel. While the insured’s widow attended the pre-hearing discussion, it was agreed that the arbitration process could not go forward until an administrator or representative of the insured’s estate was appointed. The insured’s counsel later advised that the insured’s family had not taken any steps to have an estate trustee appointed and that they had no plans to do so. The insurer sought to have the application dismissed.
17The arbitrator found that the insured’s claims had become vexatious as there was no legally viable way of pursuing them, and he indicated as follows on page 2 of the decision:
Mr. Toma has been deceased for more than two years. A deceased person cannot pursue accident benefits. A legally appointed representative, either an executor or an estate trustee can “stand in the shoes” of the deceased and pursue a claim for accident benefits. No such person exists in this claim, nor, apparently, are there any plans to appoint a trustee. There is some question in my mind as to whether the dispute resolution process was properly commenced, given the lack of an executor or estate trustee.
18Similarly, in Michael Wentzel v. RBC General Insurance Company, 2013 ONFSCDRS 33 [Wentzel], an application was commenced by the insured’s representative after the insured passed away, without an estate trustee having been appointed. The insurer moved to dismiss the application as a nullity because of the insured’s death and sought costs against the insured’s representative for commencing an unauthorized proceeding. There was no evidence that anyone had undertaken to administer the insured’s estate. The arbitrator concluded that the application had not properly been constituted and was an irremediable nullity and dismissed the application. The arbitrator also awarded costs against the insured’s representative, which was upheld on appeal.
19While I am not bound by decisions rendered by arbitrators of the Financial Services Commission of Ontario, I find the Toma and Wentzel decisions to be persuasive, and I subscribe to the same opinion.
20In the present case, I find that the applicant’s counsel commenced the application without the applicant’s authority. It is well established that a deceased person has no authority to pursue a claim for accident benefits. Rather, a lawfully authorized representative must be appointed to act on behalf of the deceased person. While it is unclear who, if anyone has been instructing the applicant’s counsel with respect to this application, given that the applicant passed away prior to the commencement of this application, in the absence of a lawfully authorized representative such as an estate trustee, there is no legally viable way for pursuing this application.
21Although the applicant’s counsel argues that she commenced the application to protect the limitation period, no explanation was provided as to why no estate trustee was appointed between June 3, 2020 (date of death) and February 25, 2022 (date of application). Further, there is no evidence that any steps were taken during this 632-day period to appoint an estate trustee to act on behalf of the applicant. Considering that the applicant passed away prior to the commencement of this application, in the absence of an estate trustee, the applicant’s counsel has not demonstrated that she was authorized to commence the application.
22I further find that the applicant’s counsel has failed to demonstrate that any person is authorized to pursue this application and to act on behalf of the deceased applicant. As previously indicated, at the case conference, an issue was raised regarding whether the applicant’s spouse was lawfully authorized to act on behalf of the deceased applicant. Despite discussions to that effect, no explanation has been provided regarding the steps taken, if any, to appoint an estate trustee to represent the applicant in this application between December 20, 2022 (date of case conference) and September 8, 2023 (date of written hearing). Further, there is no evidence to support that during this 262-day period that the applicant’s spouse, or any person, has been appointed to be an estate trustee and to represent the applicant in this application.
23I am also satisfied that the applicant’s spouse opted not to pursue appointment as an estate trustee. While I appreciate the applicant’s counsel’s comment that this application is a very sensitive matter for the applicant’s surviving spouse, I cannot ignore the fact that the applicant’s spouse had 1192 days, specifically from June 3, 2020 to September 8, 2023, to take steps to seek appointment as an estate trustee. Despite having the opportunity to do so, there is no evidence that she took any steps to pursue the appointment.
24Accordingly, I find that the application was not properly constituted and that it is an irremediable nullity.
Disputed Treatment Plans, Interest, and Award
25I find that it is unnecessary for me to consider the disputed treatment plans, interest, and an award as the respondent has demonstrated, on a balance of probabilities, that there is no authority on which this application can proceed. I further find that to continue the application would be an abuse of process.
26Pursuant to s. 280 of the Insurance Act, R.S.O. 1990, c. I.8, an insured person may apply to the Tribunal to resolve a dispute in respect to their entitlement to statutory accident benefits.
27Further, in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, the Supreme Court of Canada relied on Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ONCA) approved by 2002 SCC 63, and held as follows at paragraph 37:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.
28Here, neither the deceased applicant nor an estate trustee caused the application to be commenced, and no person has standing before the Tribunal to move the application forward. While I appreciate that the applicant’s counsel filed written hearing submissions and evidence on the applicant’s behalf, there is no evidence to support that the applicant’s counsel had standing to do so.
29Accordingly, it is unnecessary for me to consider the deceased applicant’s entitlement to the disputed treatment plans, interest, and an award. As no estate trustee has been appointed, no person is authorized to pursue the deceased applicant’s claim for accident benefits at the Tribunal. To continue the application in the circumstances would be an abuse of process.
Costs
30Pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, 2023, costs may be ordered where a party has acted unreasonably, frivolously, vexatiously, or in bad faith.
31In its written hearing submissions, the respondent sought costs against the deceased applicant in the amount of $1,000.00. The respondent submits that the application is vexatious and should never had been commenced given that no estate trustee was appointed. The respondent argues that at the very least, the application should have been withdrawn. The respondent indicates that it has incurred legal costs to defend the application against a party that does not have any legal standing or existence.
32The applicant’s counsel did not respond to the respondent’s request for costs in the reply submissions, despite having the opportunity to do so. As such, the applicant’s counsel’s position is unknown.
33It is well established that the test to award costs represents a high bar. I find that the respondent has not demonstrated that the applicant’s conduct attracts costs and I note that neither the deceased applicant nor an estate trustee acting on his behalf pursued this application. While I acknowledge that the respondent has been inconvenienced as a result of the applicant’s counsel’s actions, I have not been directed to any authority to support that the Tribunal has the power to make an order for costs against a legal representative.
34Accordingly, I decline to make an order for costs against the deceased applicant.
ORDER
35For the reasons outlined above, I find that:
The application was not properly constituted and is an irremediable nullity.
It is unnecessary for me to consider the deceased applicant’s entitlement to the disputed treatment plans, interest, and an award as neither the applicant nor an estate trustee acting on his behalf pursued this claim for accident benefits. To continue the application in the circumstances would be an abuse of process.
The respondent is not entitled to costs.
36The application is dismissed.
Released: February 13, 2024
Ludmilla Jarda
Adjudicator