Saad Khoshaba v. Gore Mutual Insurance Company

COURT FILE NO.: CV-19-617795 DATE: 20190529

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: SAAD KHOSHABA, Applicant

• and - GORE MUTUAL INSURANCE COMPANY, Respondent

BEFORE: F.L. Myers J.

COUNSEL: Alon Rooz, for the applicant Steven Coons, for the respondent

HEARD: May 28, 2019

endorsement

This Application

[1] Mr. Khoshaba applies for a declaration that on October 10, 2018 he submitted to an examination under oath in compliance with s.33(2) of the Statutory Accident Benefits Schedule – effective September 1, 2010, O. Reg 34/10.

[2] Mr. Khoshaba seeks a determination that by attending at an examiner’s office and leaving just before counsel for the insurer arrived late, due to an innocent schedule mistake, Mr. Khoshaba “submitted to an examination under oath” as set out in s.33(2) of the SABS regulation. An insured is only required to submit to one examination under oath under that section. Therefore, if Mr. Khoshaba is correct, the insurer has lost its right to examine him under oath on his income replacement benefits claim under the SABS because of an innocent scheduling error by its lawyer’s office.

[3] For the reasons that follow, the application is untenable and is dismissed.

The Factual Background

[4] The facts are not in dispute. Mr. Khoshaba was in a car accident in 2018. He applied to his insurer Gore Mutual for income replacement benefits under the SABS. The insurer scheduled an examination under oath under s.33(2) of the SABS for October 10, 2018 at 1:00 p.m. The examination was to be held at an examiner’s office at the intersection of Yonge St. and Sheppard Avenue West in North York. Mr. Rooz’s office is across the street from the examiner’s office. Mr. Coons’ office is in Hamilton, Ontario.

[5] At 1:00 p.m. on October 10, 2018, Mr. Rooz and Mr. Khoshaba attended at the examiner’s office. A reporter was present. So too was an interpreter who had been hired for Mr. Khoshaba by Mr. Coons’ office. Mr. Coons however was not there.

[6] At 1:30 p.m. Mr. Rooz put on the record that the he and his client had attended as required and then they left. Prior to leaving, Mr. Rooz made no effort to contact Mr. Coons or his office. He knew that Mr. Coons was expected to be coming in from Hamilton. He had not received notice of cancellation from Mr. Coon’s office. Mr. Coons’ office had not cancelled the interpreter either. Yet Mr. Rooz did not inquire to see if Mr. Coons had taken ill, or had been detained, or was coming to the examination. Mr. Rooz just determined that waiting 30 minutes was enough under the SABS and left.

[7] It turns out that Mr. Coons’ office diarized the time of the examination for Mr. Coons as 2:00 p.m. rather than 1:00 p.m. Mr. Coons arrived at 1:40 minutes p.m. just minutes after Mr. Rooz and his client had left. Mr. Coons did not call to say that he was going to be late because he did not know that he was late. He believed that he arrived 20 minutes early for a 2:00 p.m. examination.

[8] On arriving at the examiner’s office and discovering that Mr. Rooz and his client had just left, Mr. Coons called Mr. Rooz’s office. He could not get through voicemail to Mr. Rooz or his assistant. There is no evidence of whether Mr. Khoshaba was still with Mr. Rooz or if they had arrived back at Mr. Rooz’s office across the street at the time Mr. Coons called.

[9] In the exchange of letters that followed, the insurer demanded that Mr. Khoshaba attend for examination. Mr. Rooz took the position that Mr. Khoshaba had submitted to examination already so that the insurer was not entitled to require him to submit to examination again. However, he acknowledged that the insurer was entitled to ask for information in writing under the SABS and Mr. Rooz offered to entertain information requests by email. The insurer insisted on proceeding with an oral examination and made no written requests for information.

[10] After much positioning back and forth, the insurer terminated Mr. Khoshaba’s income replacement benefits due to his refusal to submit to examination under oath. This application does not seek an order determining the validity of the termination of benefits. Issues of entitlement to benefits are for the License Appeal Tribunal under the SABS. I raised with counsel whether the issue in this proceeding is properly before the tribunal. Counsel both agreed that the interpretation of the meaning of s.33(2) of the SABS and, specifically, the meaning of the words “shall submit to an examination under oath” is a matter of statutory interpretation for the court under Rule 14.05(3)(d) of the Rules of Civil Procedure, RRO 1990, O. Reg 194.

The Law

[11] Subsection 33(2) of the SABS provides:

If requested by the insurer, an applicant shall submit to an examination under oath, but is not required, (a) to submit to more than one examination under oath in respect of matters relating to the same accident.

[12] There was some discussion between the parties and some reference in the materials to the possibility that the insurer might rely on a different right to examine an insured referred to in s.33(9) of the SABS and O. Reg 283/95. None of this is relevant to what actually happened in this case. Accordingly, I say nothing about the availability of examinations under s.33(9) of the SABS or O. Reg 283/95.

The Applicant’s Arguments

Mr. Khoshaba Submitted to Examination by Subjecting himself to a Process.

[13] Mr. Rooz argues that s.33(2) provides a one-sided right in favour of the insurer that should be read narrowly. His legal argument is that one of the dictionary definitions of the verb “to submit” found at hhtp://en.oxforddictionaries.com, is:

“[To] subject to a particular process, treatment, or condition.”

[14] Para. 15 of the applicant’s factum submits:

By virtue of attending at the Court Reporting office on October 10, 2018, as directed by the Respondent, to be subject to an EUO [examination under oath], the Applicant has ‘submitted’ to the EUO.

[15] The applicant argues that the act of attending at the examiner’s office “to be subject to an EUO” is a submission to the process of examination and therefore satisfied s.33(2) although no examination occurred.

The Reasons for the Failure of the Examination are Irrelevant

[16] At para. 17 of his factum, Mr. Khoshaba argues that the limitation of the insurer’s right to one oral examination:

“…is so clear cut, there is no need to look at the reasons the Respondent representative did not appear. The limitation is to ensure applicants are not inconvenienced more than once. An EUO is invasive and costly, especially if counsel of [sic] an applicant is in attendance as well. Any failure of an insurer to pose particular questions, or any questions for that matter, at any EUO an applicant submitted to, is not an exception to the limitation.”

[17] Mr. Rooz argues that allowing the insurer to require an examination in this case is a slippery slope straight to the floodgates of multiple examinations in cases where, for example, an insurer’s counsel forgot to ask a question or for other abusive reasons. This argument invites an assessment of whether an insurer’s reason for requiring an examination is abusive contrary to the applicant’s argument that the insurer’s reasons for wanting a further attendance are not relevant.

[18] I asked Mr. Rooz if it would have mattered if Mr. Coons had become ill while driving to North York? Mr. Rooz allowed that “true force majeure” would indeed be a reason to require a further attendance. That answer is also inconsistent with the argument that an insured submits to an examination despite the reason why the examination did not actually occur.

[19] If the reason why an examination does not proceed does not matter, an insured could avoid an examination by attending at the examiners’ office and refusing to answer any questions. Or he could answer questions with gibberish. Mr. Rooz argued that the insured in that case would not have submitted “to an examination” even though he had attended at the examiner’s office and therefore the insurer would not be held to have used its one time right. Exactly.

Analysis

[20] In this case, Mr. Khoshaba was not subject to an examination and he did not submit to an examination. He attended ready to be examined no doubt. Then, by happenstance of human error, that could have happened to anyone, and which Mr. Rooz expressly accepts was “unintentional”, Mr. Coons was late. Mr. Khoshaba and Mr. Rooz left without Mr. Rooz inquiring of Mr. Coons as to where he was or whether he was coming. Had Mr. Rooz communicated with his professional colleague he would have discovered that Mr. Coons was moments away. By leaving without inquiring of Mr. Coons’ whereabouts or his intention, Mr. Khoshaba prevented the examination from proceeding minutes later.

[21] There is nothing in the SABS that allowed Mr. Khoshaba or Mr. Rooz to determine that waiting 30 minutes was enough without inquiry of the insurer’s counsel. Neither does the SABS authorize Mr. Rooz to cancel the insurer’s examination unilaterally.

[22] Moreover, once he learned and accepted that Mr. Coons was late due to an innocent error, it was inappropriate for Mr. Rooz to advance an argument and bring proceedings claiming that a scheduling mistake made in opposing counsel’s back office either created a right in his client or deprived Mr. Coons’ client of its statutory right.

[23] I inquired of Mr. Rooz whether Mr. Khoshaba would have suffered any prejudice had Mr. Rooz exercised the professional courtesy to call Mr. Coons before they left the examiner’s office. He argued that staying could have cost the client more in parking and legal fees. Moreover, if counsel had somewhere else to be, counsel could have been prejudiced if the examination went on later than had been expected. Mr. Rooz recognized that there was no evidence of any prejudice actually being suffered by his client in the circumstances and he submitted that prejudice is irrelevant to the statutory right that accrued to Mr. Khoshaba when he attended the examiner’s office.

[24] Rule 7.2-2 of the Rules of Professional Conduct of the Law Society of Ontario provides:

A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights.

[25] In my view this proceeding seeks to do exactly what this rule is designed to prevent. It seeks to take advantage of a mistake by counsel opposite to prejudice that lawyer’s client. Moreover, Mr. Rooz acted on his colleague’s mistake “without fair warning” by leaving and asserting that a right accrued without calling Mr. Coons to determine why he was not yet in attendance. As discussed in Rule 5.1-1, when lawyers bring civil proceedings like this one to take advantage of colleagues’ slips and oversights not going to the merits, “[s]uch practices can readily bring the administration of justice into disrepute.”

[26] In addition, the Advocate’s Society’s Principles of Civility for Advocates are also apt in this case. Rule 11 requires advocates to consult opposing counsel regarding scheduling matters. Rule 13 provides for lawyers to agree to reasonable requests for schedule changes as long as “the client’s legitimate interests will not be materially and adversely affected.” Rule 15 requires lawyers to:

…promptly notify opposing counsel when …examinations…are to be cancelled…

[27] There was no legitimate reason for Mr. Khoshaba to leave the examiner’s office after 30 minutes without Mr. Rooz attempting to communicate with Mr. Coons. They had no expectation that the examination would be over in 30 minutes even if it had started on time. Moreover, if they had to stay a bit longer due to Mr. Coons’ unintentional scheduling error, there is no evidence and no argument that Mr. Khoshaba would have been “materially and adversely affected”. Mr. Coons’ office had not called to try to reschedule the appointment. Mr. Rooz saw the interpreter was present as arranged by Mr. Coons’ office. There was no objective reason to believe that the examination was not going ahead apart from Mr. Coons being late. Contrary to Mr. Rooz’s argument, in the absence of substantive prejudice, he was required to communicate with his colleague and to agree to a brief delay. This was a matter of professional obligation regardless of the client’s wishes. As far as I can tell, the only reason to leave without contacting Mr. Coons, given the expectation that he was coming in from Hamilton, was to try to claim a substantive gain and to prejudice Mr. Coons’ client based on Mr. Coons’ mistake. This was uncivil and sharp practice.

[28] I find that Mr. Khoshaba did not submit to an examination under oath under s.33(2) of the SABS because he left before an examination was complete or even held. He did not subject himself to the process of oral examination under oath. Rather, he thwarted the process without a legal basis to do so.

[29] This proceeding casts a pall over the beacons of fairness and honour that illuminate the halls of civil justice. The application is dismissed.

[30] The respondent asks for costs on a partial indemnity basis of $2,517 all-inclusive. Mr. Rooz agrees that this is a reasonable amount. Mr. Khoshaba is ordered to pay Gore Mutual’s costs on a partial indemnity basis fixed at $2,517 forthwith.

[31] Mr. Rooz is directed to provide a copy of this Endorsement to Mr Khoshaba.

F.L. Myers J.

Date: May 29, 2019