CITATION: Hordo v. CAA Insurance Company 2023 ONSC 6774

DIVISIONAL COURT FILE NO.: 172/23 DATE: 20231130

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

B E T W E E N:

RE: DIANA HORDO & MICHAEL HORDO, Applicants

AND:

CAA INSURANCE COMPANY Respondent

BEFORE: Leiper, J.

COUNSEL: Diana and Michael Hordo, Self-represented Applicants

Marc Chaput and Alanna Pink, for the Respondent CAA Insurance Company

HEARD at Toronto: November 27, 2023 by videoconference

Reasons Released: November 30, 2023

ENDORSEMENT

[1] The applicants, Diana and Michael Hordo, bring a motion for an extension of time to appeal a reconsideration decision of the Licence Appeal Tribunal, dated January 13, 2023.

[2] The applicants did not serve their notice of appeal until February 24, 2023. This amounted to a 12-day delay. The respondent, CAA Insurance Company, does not consent to the extension of time. CAA seeks the dismissal of the appeal on the basis that it is out of time.

[3] While acknowledging that the delay in this case is not lengthy, CAA submits that the justice of the case would not be served by granting an extension of time. CAA argues that the applicants have a history of vexatious litigation, filing lengthy materials that are not relevant to the immediate points in issue and making unfounded serious accusations against counsel and others involved in litigation. CAA also submits that the appeal is devoid of merit.

[4] For the reasons below, I allow the motion to extend time, on terms that are described below.

Background

[5] The applicants were involved in a car accident on May 6, 2019. They applied for accident benefits under their insurance policy. A hearing was held before the LAT, spanning June 13-17, 20, and 24, 2022. In reasons dated September 12, 2022, a two-member panel of the LAT found that the applicants had not met their onus of establishing a complete inability to carry on a normal life. The LAT declined to order that the applicants were entitled to housekeeping or home maintenance funds and awarded costs in favour of CAA of $500.00.

Analysis: Should the Motion to Extend Time be Allowed?

[6] The factors relevant to a motion to extend time are:

a. whether the moving party formed a bona fide intention to appeal within the relevant time period;

b. the length of, and explanation for, the delay in filing;

c. any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and

d. the merits of the proposed appeal, and

e. whether the "justice of the case" requires the extension.

See: Rizzi v. Mavros 2007 ONCA 350, 85 O.R. (3d) 401; 2007 ONCA 350 at para. 16; Bratti v. Wabco Standard Trane Inc. (c.o.b. Trane Canada), 1994 1261 (ONCA), [1994] O.J. No. 855; 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412 at para. 29.

Intention to Appeal, Length of Delay and Explanation for the Delay

[7] The length of delay here is 12 days, which is not lengthy. The applicants explained that they miscounted the days and assumed that weekends were not included. They submit that they formed a bona fide intention to appeal within the relevant time.

[8] The issues raised at the LAT hearing and on reconsideration, and the material served by the applicants 12 days after the required date, permit an inference to be drawn that the applicants intended to appeal the reconsideration decision within the required time. They explained that they miscalculated the dates.

[9] Although CAA submitted that I should draw the inference that Mr. Hordo, a former lawyer, could not have misunderstood the requirements under the Rules for the calculation of time to file an appeal, I do not draw that inference.

[10] I decline to do so because although Mr. Hordo is a former licensee of the Law Society of Ontario, he has not practised law now for many years, having surrendered his licence in 2008 following proceedings before the Law Society Tribunal. Ms. Hordo does not have legal training.

[11] There is evidence in the motion materials of confusion by the applicants in applying the Rules. For example, in this motion, the applicants filed lengthy materials, which were not material o the factors to be applied on an extension of time motion, including the obituary of a judge of this Court, and a 2010 press report about spending by the Toronto Humane Society. The applicants also inexplicably served the motion materials on non-parties such as the federal and provincial ministers of finance.

[12] Further, it is unclear what benefit the 12-day delay bestowed on the applicants. It led to additional correspondence, the need for this motion, more delay and the cost and effort involved in a motion which if unsuccessful would have prevented them from proceeding with their appeal.

[13] I find that it is more likely than not that the applicants delayed serving their notice of appeal because of disorganization or misunderstanding of the requirements, rather than an attempt to abuse the process of the court or to deliberately flout the rules. While these observations are not intended to excuse the applicants from future compliance with the rules or directions of the Court, they explain why I would not draw the inference that the applicants "knew better."

[14] I turn next to prejudice, the merits of the appeal and the justice of the case.

Is there prejudice to CAA in granting an extension?

[15] On a motion to extend time, the question of prejudice has been applied to prejudice arising from or perpetuated by the delay itself. Broader questions of prejudice, beyond that occasioned simply by the delay fall to be considered under the fourth factor: 828343 Ontario Inc. at para 29.

[16] CAA has not demonstrated any significant prejudice arising from the 12-day delay in receiving the notice of appeal. The appeal is on questions of law on the record before the LAT. There is no demonstrable prejudice caused by the delay in CAA's ability to respond to an appropriately framed appeal on a question of law.

[17] In support of its argument that this litigation will cause prejudice to the respondent, CAA filed decisions in prior litigation involving these applicants and other parties. In several of these decisions, the applicants have been found to have made serious unfounded allegations against litigants, non-parties, or counsel: see for example, Hordo v. Zweig, 2021 ONSC 2244 at paras. 3-4; Hordo v. Zweig 2022 ONSC 593 at paras. 31-39.

[18] Applying 828343 Ontario Inc. I conclude that this part of CAA's submission should be considered under the "justice of the case" factor.

Is the Appeal Devoid of Merit?

[19] The applicants' notice of appeal contains argument and does not set out clear grounds of appeal. In oral argument, the applicants focussed on the elements in the notice that allege procedural unfairness and their intention to pursue a recently discovered ground of reasonable apprehension of bias.

[20] On this latter point, the applicants filed material which suggests that at the time of their hearing, one of the adjudicators who heard their case had been hired by an insurer (not CAA) which regularly appears before the LAT. This fact was not known to the applicants at the time of the hearing in 2022 nor at the time of reconsideration, which was conducted by another adjudicator.

[21] The applicants have filed press reports, and email exchanges with the President of the Ontario Trial Lawyers' Association, from August of 2023 which allege:

a. An Adjudicator accepted a position with Aviva Insurance in June of 2022 but continued to hear cases until November 2022 for the LAT;

b. During the period between accepting employment and leaving the LAT, the Adjudicator made decisions which favoured the insurance company in each case, including her future employer, and in this matter, CAA;

c. The Ontario Trial Lawyers' Association of Ontario filed a complaint with the Financial Services Regulatory Authority and the Law Society of Ontario concerning the Adjudicator; and

d. The LAT has reached out to certain claimants who had hearings before this Adjudicator, concerning re-hearings but has not done so in the case of the applicants in the case at bar.

[22] CAA disputes that these allegations raise a question of law because even if true, the Adjudicator in question was hired by a different insurance company. CAA filed no other material on this aspect of the applicants' intended claim that there may have been an apprehension of bias, nor did it address the test for apprehension of bias. Their submissions amounted to simply stating that this is not a meritorious issue in this case.

[23] The applicants have stated in argument that they intend to file an amended notice of appeal that will include alleged a ground of reasonable apprehension of bias at their initial hearing.

[24] The test for reasonable apprehension of bias from Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, at p. 394 S.C.R., is as follows:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly."

[25] The appearance of judicial impartiality is as important as the fact of impartiality: Hazelton Lanes Inc. v. 1707590 Ontario Ltd., [2014] O.J. No. 5365, 2014 ONCA 793, at para. 60.

[26] The Adjudicator heard the applicants' case before the LAT along with another adjudicator who was also responsible for dismissing the request for reconsideration. The allegations of reasonable apprehension of bias were not known. That issue arose in August of 2023, after the applicants had served their notice of appeal. If the allegations are true, which is not known at this time, and even though the Adjudicator in question was employed by a different insurance company,

[27] This hearing decision fell within the time alleged to have been tainted by the Adjudicator's employment with another insurer. The applicants did not have an opportunity to seek recusal or raise the issue on reconsideration. At this stage, they need not demonstrate that this ground of appeal will be successful. On the present record, and in the absence of any material from CAA challenging the alleged facts around the issue of apprehension of bias, I am not able to find that this ground of appeal is utterly devoid of merit.

Does the Justice of the Case Require the Motion be Dismissed?

[28] Turning now to the broader question of the "justice of the case", this involves the applicants' history of making unfounded allegations during litigation and filing voluminous and irrelevant material that does not comply with the rules or directions from the court. The respondents are concerned with other litigation conduct, which seeks to involve non-parties, delays hearings on the merits and wastes time and resources with unfounded allegations and voluminous, unfocussed material.

[29] CAA has some basis for this concern, as discussed above. This type of conduct has been noted in other proceeding involving the applicants in the past, and more than once. However, denying litigants access to the courts for past conduct is serious step and one that must be considered carefully before doing so.

[30] Is this history sufficient to refuse an extension of an appeal which is not devoid of merit, where the delay is not lengthy and there is evidence of an intention to appeal? I cannot conclude that it does, for three reasons.

[31] First, the court has case management powers which are available to provide directions, set timetables, limit the volume of materials, and enforce its directions. Second, this appeal is at an early stage which means that case management is more likely to be successful. Finally, the applicants have stated their willingness to abide by orders and be amenable to case management.

[32] I cannot conclude that the applicants should not be able to continue with their appeal at this stage based on past findings in other litigation. However, having said that, it is important that terms be responsive to the potential issues which have been the subject of submissions on this motion.

Conclusion

[33] The motion to extend time is granted, subject to the following terms:

a. The applicants are to file an amended Notice of Appeal within 30 days of this order, to be counted by including weekends and holidays;

b. The amended Notice of Appeal must set out the grounds of appeal, without argument, in brief numbered paragraphs; and

c. Within 30 days of this order, the parties are to schedule a case conference with a judge of the Divisional Court and attend that case conference prepared to discuss a timetable for the exchange of materials, deadlines for the applicants to order and file the transcripts, and limits on page numbers and materials to ensure that irrelevant or repetitious, unnecessary, or irrelevant material is not filed on the appeal.

[34] Both parties sought their costs of the motion. In the ordinary course, costs are awarded to the successful party. However, the relief sought here is a direct result of the applicants' failure to comply with the Rules, requiring them to seek an indulgence. The applicants' materials included irrelevant and unnecessary material. I order costs in favour of the respondent in the amount of $1,000.

Leiper J.

Date: November 30, 2023