Volume. 6 Issue. 26 – July 6, 2022
This week the Tribunal in ‘Some But Not All Improperly Scheduled IEs Struck From Record,’ considers an appropriate remedy after an Applicant ultimately attends IEs that were improperly scheduled, with said reports forming part of the Respondent’s evidentiary record.
Next the Tribunal finds behaviour during the course of a hearing warranting a costs award in two separate cases. In ‘Poor Behaviour Comes at a Cost’, an award against the Respondent and, in ‘Untimely Withdrawal Attracts Costs’ the maximum amount was awarded against the Applicant.
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IE’s Struck from Record
Some But Not All Improperly Scheduled IEs Struck From Record – In 21-000665 v Wawanesa, the Tribunal considered what, if any, remedy was available to the Applicant Sugunarajan, following his attendance at s.44 IEs, where the Tribunal ultimately adjudged the s.44(5) notices to be deficient.
The Tribunal noted that “Despite the lack of an express remedy attached to this provision, I am satisfied that breaches of this section require a meaningful remedy.” However, there was as well “an obligation to ensure procedural fairness in all of its proceedings.” This requires “the ability of parties to put forward credible cases that address the foundational components of the dispute.” Therefore, the Tribunal granted Sugunarajan’s request for several, but not all, of the affected reports to be excluded from the record.
Noting that this “significant remedy” has been established at the Tribunal through case law, the Tribunal found it to be “appropriate in cases where striking a report does not unduly and irrevocably imperil the fairness of the proceeding.” For the matter at hand, it was concluded that reports related to July and August letters would be struck from the record, as there remained a way “to adequately test the applicant’s condition pursuant to the operative entitlement standard used in these reports, i.e., the post-104 week IRB standard.” However, as for the other reports, the same opportunity did not exist, as Sugunarajan had been tested during a time period that has since passed, in other words “there is no longer a way to adequately assess the applicant’s condition during the pre-104 week period for either the IRB or the ACB.”
There was confirmed to be a “clear difference in the prejudice facing the respondent’s case from striking the pre- and post-104 week reports, because the latter can be replicated through in-person testing. On the other hand, the pre-104 week period ended in July 2020, so there is no way for the respondent to now re-do testing that could adequately replicate the applicant’s condition during this period.” Therefore, despite a clear breach of s.44(5) “striking the IE reports that arose from before the 104-week mark would unduly and irrevocably imperil the respondent’s case”, with a similar finding regarding the ACB reports. Further, “, the more appropriate remedy to address the deficiencies in the April 9 and July 29, 2019 Notices is to allow the hearing adjudicator to determine what weight will be afforded to these reports.”
Wawanesa argued both a lack of prejudice to Sugunarajan, as well as the length of time that passed prior to the filing of this motion. In response, the Tribunal confirmed “insured persons are not expected to alert insurers of procedural breaches. Section 44(5) is a mandatory provision…(and) there must be a remedy for breaching this mandatory provision.” Wawanesa cited S.V. v. Aviva, a similar fact situation in which the Tribunal indicated that the Applicant had had the option to not attend the improperly scheduled IEs, however the Tribunal found that this proposed “remedy” could well prove prejudicial to an Applicant, given the risk of the effects of s.55(1) of the Schedule for not attending an IE, in the event the notice was ultimately found sufficient.
Failure to Follow Production Orders Proves Costly
Poor Behaviour Comes at a Cost – In 18-007658 v Security National, the Tribunal found that Security National’s “failure to comply with the Tribunal’s production order meets the definition of unreasonable conduct and is worthy of an award.”
At issue was Security National’s failure to fully comply with a production order to produce all records involving their dealings with their IE assessors. This did not come to light until counsel for the Applicant Afshan was in the midst of cross examining Security National’s adjuster. As a direct result, a lengthy break was required so as to allow counsel to review the additional records and prepare questions for a continued cross. The Tribunal did not accept Security National’s suggestion that this was a case of “administrative oversight, rather that it represented deliberate non compliance with the production order.
The Tribunal further found that counsel for Security National interfered with Afshin’s ability to cross examine the adjuster, resulting in delay. The Tribunal found that the “conduct needs to be deterred as the Tribunal’s orders need to be respected or it will render them meaningless and prevent timely and cost-efficient access to justice. In what was supposed to be a one-day hearing turned into a two-day hearing.” This “blatant disrespect of the Tribunal’s process”, primarily responsible for another full day hearing on the issue of the award resulted in a cost award of $500.
Late Withdrawal Attracts Costs
Untimely Withdrawal Attracts Maximum Costs – Finally, in 20-002022 v Gore Mutual, the Tribunal levied a $1000 costs award against the Applicant Bablak. The parties were to begin a five day in person hearing June 7, 2021. On that date, at 9:08 AM, Bablak e-mailed the Tribunal, advising that the application was being withdrawn. The Tribunal noted that there was no formal Notice of Withdrawal before the first day of the hearing, and that as a result the “behaviour interfered with the Tribunal’s ability to carry out a fair and efficient and effective process.” In addition, “the applicant acted unreasonably in waiting for the hearing to begin before deciding that her application was to be withdrawn.”
Further, “the respondent was also prejudiced by the applicant’s late notice of withdrawal, as the respondent proceeded to prepare for the hearing not knowing of the late withdrawal. The respondent spent counsel time and preparation time that could have been avoided if the applicant had withdrawn the application earlier.” As a result, the Tribunal concluded that Bablak acted unreasonably in the process, leading to an order of costs of $1,000 against Bablak, the maximum amount available under the Rules.
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