16-000546 v Primmum Insurance Company, 2017 CanLII 46355

Jul 12, 2017

Adjudicator by Chris Sewrattan

Issue: Is Primmum entitled to costs under Rule 19.1?

The Applicant was injured in a motor vehicle accident on June 4, 2014. He applied for and received benefits under the Statutory Accident Benefits Schedule. Primmum ceased paying for treatment when the Applicant approached the payment limit under the Minor Injury Guideline. The Applicant brought a claim to the Tribunal.

At the case conference, the Applicant submitted a Treatment and Assessment Plan dated November 26, 2014 to Primmum. The Applicant withdrew the Treatment and Assessment Plan ten days later. There is no evidence that Primmum denied the Treatment and Assessment Plan. Nevertheless, the Applicant appealed the non-payment of the Treatment and Assessment Plan to the Tribunal. Applicant’s counsel had requested that the Tribunal remove the withdrawn Treatment and Assessment Plan and add a new one. Primmum had provided partial payment on this new Treatment and Assessment Plan, leaving a $70 balance outstanding.

During the scheduled hearing, the Applicant provided 1.5 pages of written submissions not addressing the November, 2014 treatment plan.  The submissions solely addressed the outstanding $70 payment on the new treatment plan. The Applicant was represented by counsel and a paralegal. Primmum raised the applicant’s lack of evidence as an issue in its response submissions, and provided its own evidence in accordance with the Tribunal’s order. The applicant did not provide reply submissions or evidence. At about the time of the written hearing, the paralegal with carriage of the applicant’s file was discharged.

Realizing that the Applicant had provided no evidence, the adjudicator solicited submissions from the parties on whether the applicant ought to be permitted to submit evidence after the submission deadline. These submissions had their own deadlines: September 16, 2016 for the applicant and September 23, 2016 for Primmum. The Applicant did not provide any submissions on whether he should be permitted to provide evidence to support his case.

On October 14, 2016 the claim was dismissed because the applicant failed to provide any evidence.

Motion

Primmum brought a motion for costs arising out of the applicant’s conduct during the Tribunal’s proceeding.

At the costs motion hearing, the Applicant was represented by a third person from the same firm. Applicant’s new counsel incorrectly believed that the costs motion hearing was in fact a case conference. During the cost motion hearing, counsel advised that any unreasonable conduct from the applicant, if it occurred, was caused by her law office. The Applicant did not cause his legal representative’s failure to provide evidence or respond to the Tribunal’s request for additional submissions.

Issue: Was the Applicants conduct unreasonable, frivolous, vexatious, or in bad faith?

The Applicant’s conduct was not frivolous, vexatious, or in bath faith. The only question is whether his conduct was unreasonable. Applicant’s counsel has acknowledged that any unreasonable conduct on the part of the applicant was caused by his legal representation and not by him personally.

On its own, it was not unreasonable for the Applicant to provide his written hearing submissions without corresponding evidence: disorganization within the applicant’s law firm caused them to not provide sufficient evidence. This mistake did not amount to “unreasonable” conduct.

What was unreasonable, however, was counsel’s failure to provide submissions on why they should be permitted to provide evidence after the submission deadline. The Applicant’s legal representative(s) had made a mistake and were given an opportunity to correct the situation. Provided with this opportunity, counsel again failed to provide the Tribunal with necessary documentation. This omission amounted to unreasonable conduct. Furthermore, through the course of the Tribunal’s proceeding, the applicant was represented by three different representatives from the same firm, none of whom knew exactly what was going on.

The Applicant himself was not responsible for any unreasonable conduct.  While generally an Applicant and his or her counsel are considered one party, the exceptional circumstances of this case required a departure from that approach.  Rule 19.1 only allows for costs against the parties—and the Applicant’s counsel was not a party to the proceeding. Rule 19.1 costs do not issue to compensate an insurer for frustration. Costs would have been ordered if the unreasonable conduct was not caused solely by the Applicant’s legal representation.

Result: The motion for costs is denied.