April 01, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
M. M. S. v Wawanesa; Costs order; procedural issues; insurer fails to provide documentation; costs awarded to applicant
Date of Decision: January 30, 2017
Heard Before: Adjudicator Chloe Lester
M.M.S. was injured in a car accident on February 28, 2014. Disputes arose between M.M.S. and Wawanesa concerning her entitlement to accident benefits and M.M.S. submitted an application for dispute resolution services to the LAT.
In a letter dated October 27, 2016 addressed to the Tribunal and copied to counsel for Wawanesa, counsel for M.M.S. indicated that she had not received production of documents, nor any correspondence from Wawanesa. Ms. Steinberg requested a further Order on production, an extension of time for submissions, and requested costs.
- Is M.M.S. entitled to costs pursuant to the Licence Appeal Tribunal Rules of Practice and Procedure, Rule 19?
- 7. M.M.S. is entitled to costs in the amount of $250.00.
On September 28, 2016, the Tribunal was copied on a letter sent by Ms. Steinberg to Mr. March reiterating the request for productions and reminding Mr. March of the impending Order deadline of October 25, 2016. The parties consented to exchange documents by October 25, 2016 and their consent was noted in the Tribunal’s Order.
On October 27, 2016, the Tribunal received a letter from M.M.S. indicating that counsel for Wawanesa had not complied with the Tribunal’s Order. M.M.S. stated that she had followed up with counsel for Wawanesa regarding the production Order and reminding him of the production request and the Order deadline. She alleges that counsel has neither complied with the Tribunal’s production Order nor responded to her letters. M.M.S. requested a further Order for production, an extension of time for submissions, and requested costs.
On November 2, 2016, the Tribunal wrote to the parties ordering Wawanesa to produce the documents by November 4, 2016. As per rule 19.3 of the Licence Appeal Tribunal Rules of Practice and Procedure, both parties were given 7 days to submit arguments on the issue of costs with a due date of November 9, 2016.
On November 7, 2016, M.M.S. filed submissions on the issue of costs, seeking $1,000.00 for failure to comply with the Tribunal’s Orders. M.M.S. submits that Wawanesa’s failure to comply with the Tribunal’s Order caused her to request a timeline extension, as she had not received important documents. Counsel for M.M.S. had followed up with Mr. March with numerous letters and phone calls, all with no response.
On November 8, 2016, the Tribunal was copied on a letter from counsel for Wawanesa that indicated he had requested the documents from his client and would forward them as soon as they were received. On November 9, 2016, the Tribunal phoned Wawnesa’s counsel’s office and confirmed that he had received the Order dated November 2, 2016, and he submitted that he had requested the documents from Wawanesa and would forward them as soon as they were received. He submitted neither he nor his client had acted unreasonably, frivolously, vexatious or in bad faith.
On November 10, 2016 M.M.S. replied, submitting that costs are appropriate under these circumstances, as Wawanesa had failed to comply with two Orders of the Tribunal. Further, she submitted that the letter sent on November 8, 2016 was deficient as it only addresses part of the Order for production and fails to address the documents requested from the assessors. It is M.M.S.’s position that Wawanesa has acted unreasonably.
The Arbitrator reviewed the law and determined that based on the evidence and facts submitted, Wawanesa has acted unreasonably during the course of these proceedings. Wawanesa made no attempt to produce the required documents until after the second Order was made. Wawanesa and their counsel were both present for the case conference and were aware of, and consented to the timelines. M.M.S. followed up twice prior to the disclosure deadline in the initial Order with reminders. Most of the required documents are in the possession of Wawanesa and no attempts were made to comply with either Order until after the request for costs were made. Wawanesa has been disrespectful of the Tribunal’s process and has provided no explanation as to why it did not comply with the Tribunal’s Orders.
On this basis, the Arbitrator found that Wawanesa’s conduct interfered with the Tribunal’s capacity to maintain an efficient proceeding. Wawanesa’s lack of compliance with the initial order necessitated that the Tribunal issue a second production order and follow up directly with Wawanesa in a phone call.