In Syed v Security National Insurance Company, the main, substantive, issue to be decided was whether Ms. Syed had sustained a catastrophic impairment as a result of her November 4, 2018 motor vehicle accident. Attendant care benefits as well as a number of medical and rehabilitation benefits were also in dispute.
After assessing the evidence before him, Adjudicator Christopher Evans ultimately found that Ms. Syed was not catastrophically impaired, and that none of the disputed benefits were payable, given that her non-catastrophic limits of $65,000.00 had been exhausted.
Adjudicator Evans offers a detailed analysis of Criteria 7 and 8, outlining why the Applicant did not sustain a catastrophic impairment under either criterion. However, what is most noteworthy about this Decision, is the orders regarding numerous Motions made prior to and during the course of the ten day hearing.
Motions
Two business days before the start of the hearing, The Applicant first sought an order requiring the production of the complete accident benefits file as of December 31, 2022, including the adjusters’ log notes. Notwithstanding the denial of that Motion, the Applicant repeatedly sought production of the same documents in various ways, throughout the course of the proceedings. Adjudicator Evans denied all of these requests, noting that it was too late to bring a motion for productions at that late stage. Furthermore, the Motions were found to be non-compliant with the LAT Rules, which required ten days’ notice for such Motions.
After denial of those Motions, the Applicant asserted that the Adjudicator should recuse himself as biased. Adjudicator Evans declined to do so, and noted that it was inappropriate to accuse an adjudicator of bias solely on the basis of an unfavorable decision.
During the examinations of various witness, the Applicant moved for orders requiring that the witnesses produce documents or seek out further information. Adjudicator Evans concluded that the Applicant ought to have obtained this evidence in advance of the hearing, and as such, he denied all of these motions, with one exception: the clinical notes and records of an Insurer’s Examination assessor were made an exhibit, as the assessor had those documents before him during his testimony.
Halfway through the hearing the Applicant brought a motion for the Tribunal to state a case to the Divisional Court pursuant to s.13(1)(c) of the Statutory Powers Procedure Act, alleging two instances of contempt: one on the part of the company which prepared the Insurer’s Examination reports, and the other on the part of the Respondent. This Motion, too, was denied, on the basis that there were no grounds for stating a case for contempt to the Divisional Court.
The Respondent brought two Motions of its own. The Respondent filed a Motion to exclude the evidence of a representative of the company which completed the Insurer’s Examinations. Adjudicator Evans granted the Motion, noting that the Applicant had the opportunity to obtain evidence about the functions delegated to the company from the adjuster and the independent assessors. The Respondent was also successful in quashing a summons for the adjuster listed on the Applicant’s witness list, who was on indefinite medical leave. While the Applicant argued that there was no evidence of that medical leave, Adjudicator Evans found that Respondent Counsel’s word that the person was on medical leave was sufficient, and that further evidence would have been unnecessary and an unwarranted intrusion into the adjuster’s privacy. Furthermore, the Applicant would not suffer any prejudice, as she had the adjusters’ log notes, and the ability to cross examine another adjuster who was called as a witness.
At the end of the proceedings, the Applicant brought a motion seeking $2,000,000.00 in punitive damages, on the grounds that the Respondent had breached its duty to act in good faith. That Motion was also denied, on the basis that it was settled law that the Tribunal does not have jurisdiction to make such an award.
Costs
Rule 19.1 of the Rules provides that costs may be awarded against a party that has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 provides that the Tribunal must consider all relevant factors, including the seriousness of the misconduct; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.
The Applicant’s motions for the case of contempt to be stated to the Divisional Court, and for punitive damages alleged that the Respondent and its counsel engaged in serious misconduct, including criminal offences. The Respondent sought costs of $1,000.00 for each of those motions, submitting that the allegations were groundless and inflammatory, and that it was unnecessarily put to the expense of responding to them.
In a relatively rare occurrence at the LAT, Adjudicator Evans found that the $2,000.00 costs request was warranted. Adjudicator Evans opined that the Applicant’s allegations of wrongdoing by the Respondent and its counsel were frivolous and vexatious, with no merit, and the Adjudicator also indicated that accusing a person of committing a crime, acting in contempt, or breaching the Rules of Professional Conduct is extremely serious, and should not be done lightly.
Takeaways
LAT Motions can be an extremely useful tool used by the parties prior to, or during, a LAT hearing, before the substantive dispute is decided. That said, just because a party can bring a Motion, does not necessarily mean that it should. Parties involved in these proceedings would do well to ensure that any Motions being brought have merit, and that they would not likely fall prey to being classified as frivolous, vexatious, or in bad faith. As this Decision shows, Motions classified as such can indeed result in a costs award against the moving party.
Jessica Telfer is a member of the LAT and Catastrophic Loss practice groups and the author of this blog. If you have a question about this decision or a similar file, please contact Jessica at 416-777-5228
