Date Issued: June 26, 2020

File: VI-2019-009338

Type: Motor Vehicle Injury

Civil Resolution Tribunal

Indexed as: Mu v. ICBC, 2020 BCCRT 712

Default decision – non-compliance

BETWEEN:

SUJUAN MU

 

APPLICANT

AND:

INSURANCE CORPORATION OF BRITISH COLUMBIA

 

RESPONDENT

 

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

 

INTRODUCTION

1.      This is a final decision of the Civil Resolution Tribunal (CRT) about the non-compliance of the applicant, Sujuan Mu, with the CRT’s mandatory directions as required, as discussed below.

2.      This dispute is about entitlement to accident benefits under Part 7 of the Insurance (Vehicle) Regulation (IVR). The respondent, Insurance Corporation of British Columbia (ICBC), is an insurer that administers accident benefits under Part 7.

3.      This dispute has been the subject of two previous preliminary decisions: Mu v. ICBC, 2020 BCCRT 267 (the March 6, 2020 decision) and Mu v. ICBC, 2020 BCCRT 432 (the April 21, 2020 decision).

4.      In the March 6, 2020 decision, I considered generally whether an applicant can file a “placeholder” or “bare bones” application for dispute resolution to preserve a limitation period. I determined Ms. Mu was entitled to file whatever form of application she saw fit, subject to the applicable limitation period and the CRT’s jurisdiction. I also found that once a Dispute Notice is issued, the CRT’s dispute resolution process is started and does not stop unless the CRT orders it paused under CRT rule 1.15.

5.      In the April 21, 2020 decision, I considered Ms. Mu’s request to indefinitely pause the tribunal process for this dispute, which I denied after a consideration of the factors set out in CRT rule 1.15. I also considered, and rejected, Ms. Mu’s allegation of bias against CRT members.

6.      The CRT case manager has now referred this matter to me for a decision on whether Ms. Mu is non-compliant under the Civil Resolution Tribunal Act (CRTA) and the CRT’s rules and, if so, whether I ought to hear the dispute without Ms. Mu’s further participation, refuse to resolve this dispute, or dismiss it. For the reasons that follow, I find Ms. Mu is non-compliant, and I dismiss her claims.

7.      Ms. Mu is represented by Martin Bauer, legal counsel. ICBC is represented by an employee.

JURISDICTION AND PROCEDURE

8.      As noted above, the case manager has referred Ms. Mu’s non-compliance to me for a decision.

9.      Section 36 of the CRTA applies if a party to a dispute fails to comply with the CRTA or its regulations. It also applies if a party fails to comply with the CRT rules in relation to the case management phase of the dispute, including specified time limits, or an order of the CRT made during the case management phase. After giving notice to the non-compliant party, the case manager may refer the dispute to the CRT for resolution and the CRT may:

a.    Hear the dispute in accordance with any applicable rules.

b.    Make an order dismissing a claim in the dispute made by the non-compliant party, or

c.    Refuse to resolve a claim made by the non-compliant party or refuse to resolve the dispute.

10.   These are the CRT’s formal written reasons. The CRT has jurisdiction over motor vehicle injury disputes, or “accident claims”, brought under section 133 of the CRTA. Section 133(1)(a) gives the CRT jurisdiction over the determination of entitlement to accident benefits. Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

ISSUES

11.   The issues before me are:

a.    Whether Ms. Mu is non-compliant with the CRTA and the CRT’s rules,

b.    If she is, whether I should decide this dispute without Ms. Mu’s further participation, refuse to resolve it, or dismiss it.

EVIDENCE AND ANALYSIS

Non-compliance

12.   For the following reasons, I find Ms. Mu is non-compliant in this dispute, and has failed to substantively participate in the case management phase, as required by sections 25 and 32 of the CRTA and CRT rules 1.4(1), 5.1 to 5.4, and 7.1 to 7.4. Ms. Mu has failed to substantively participate, despite multiple requests by the case manager for Ms. Mu to either withdraw her claim or proceed with adjudication of the dispute by particularizing details of her claim for accident benefits.

13.   Ms. Mu was involved in a motor vehicle accident on April 8, 2019, and filed an application for dispute resolution with the CRT to preserve the limitation period for her entitlement to accident benefits under Part 7 of the IVR. Ms. Mu said she is not seeking any specific benefits at this time, but rather filed the application for dispute resolution to preserve her right to pursue an action for accident benefits at sometime in the future. It is undisputed that Ms. Mu has received some accident benefits by ICBC to date, and has not been denied any benefit sought.

14.   As noted above, in the Mu v. ICBC, 2020 BCCRT 432 decision, I denied Ms. Mu’s request for an indefinite adjournment and found Ms. Mu had not established a reasonable apprehension of bias requiring all CRT members to recuse themselves from adjudicating her dispute. As a result of that decision and my Mu v. ICBC, 2020 BCCRT 267 decision, Ms. Mu’s dispute about entitlement to accident benefits was set to continue through the dispute resolution process.

15.   CRTA section 32 says that for the purposes of preparing a dispute for resolution by the CRT, the case manager may direct any or all parties to, among other things, provide information respecting the issues in the dispute and the position of the parties in relation to those issues.

 

16.   The case manager made the following attempts to further Ms. Mu’s dispute within the dispute resolution process:

a.    On May 7, 2020, the case manager asked Mr. Bauer to confirm whether Ms. Mu would like to withdraw her claim or proceed to adjudication, given the April 21, 2020 decision.

b.    On May 10, 2020, Mr. Bauer advised he had no submissions to provide.

c.    On May 20, 2020, the case manager again asked Mr. Bauer to confirm whether Ms. Mu would like to withdraw her claim or proceed to adjudication. The case manager further explained that in order to proceed with adjudication, Ms. Mu would need to provide further details about her claim for entitlement to accident benefits.

d.    On May 20, 2020, Mr. Bauer again advised he had no submissions to provide.

e.    On May 21, 2020 the case manager again asked Mr. Bauer to confirm how Ms. Mu would like to proceed, and identified the need to quantify her claim.

f.     On May 25, 2020, Mr. Bauer responded asking for an indefinite adjournment and again argued all CRT members, including myself, should recuse themselves for bias.

g.    The case manager sent further requests for response on each of May 27, May 28, and June 3, 2020. All three requests contained a warning referencing section 36 of the CRTA and advising Mr. Bauer that if he did not comply with the case manager’s directions, the dispute may be referred to a tribunal member who may decide the dispute without Ms. Mu’s further participation.

h.    On each of May 27, May 28, and June 3, 2020, Mr. Bauer responded the same day stating his position remained the same as in his May 25, 2020 response.

 

i.      In a telephone call on June 4, 2020, Mr. Bauer advised the case manager that Ms. Mu would not be withdrawing her claims. Therefore, on June 8, 2020, the case manager emailed Mr. Bauer requiring Ms. Mu to provide details of her accident benefits claim by June 12, 2020, again with the section 36 warning that if she failed to do so, the dispute could be escalated for a decision about non-compliance. By email the same day, Mr. Bauer advised he was not ready to quantify Ms. Mu’s claim.

17.   The case manager then referred the matter of Ms. Mu’s non-compliance with the CRT’s rules and the CRTA to me for a decision as to whether I should hear the dispute without Ms. Mu’s further participation. To date, Ms. Mu’s claims for accident benefits have not been particularized. Instead, in her Dispute Notice, Ms. Mu only generally states she is entitled to accident benefits, though it is undisputed ICBC has not denied any benefits sought.

18.   Based on the above, I find Ms. Mu is non-compliant with the CRTA and the CRT’s rules for her failure to particularize her accident benefits claim as directed by the CRT’s case manager. I turn then to whether I should continue to hear this dispute, or whether I should refuse to resolve or dismiss it.

Should the CRT hear Ms. Mu’s dispute without her further participation?

19.   As referenced above, Ms. Mu initiated this CRT dispute. As referenced in my Mu v. ICBC, 2020 BCCRT 267 decision, once a Dispute Notice is issued, the dispute resolution process is started, and is not paused unless so ordered by the CRT, under CRT rule 1.15.

20.   Mr. Bauer requested to indefinitely pause the dispute resolution process, which I denied in my Mu v. ICBC, 2020 BCCRT 432 decision. As a result, Ms. Mu had two options at that point: to withdraw her claim or to proceed to adjudication. Unfortunately, through her counsel, Ms. Mu has declined to substantively participate in the CRT’s process, with Mr. Bauer continuing only to advance his same previous arguments, and repeatedly failing to provide the information requested by the case manager. Although Mr. Bauer continues to argue all CRT members are biased and requests an indefinite adjournment, I have already addressed these arguments in my previous decisions. Mr. Bauer has not raised any new submissions or evidence that would require a fresh decision on those matters. As noted above, Mr. Bauer advised Ms. Mu is not withdrawing her claims for accident benefits. Therefore, Ms. Mu is required to proceed through the dispute resolution process. I find Ms. Mu, through Mr. Bauer, has failed to comply with the CRT’s directions to quantify her claims.

21.   Rule 1.4(2) states that if a party is non-compliant, the CRT may:

a.    Decide the dispute relying only on the information and evidence that was provided in compliance with the CRTA, a rule or an order,

b.    Conclude that the non-compliant party has not provided information or evidence because the information or evidence would have been unfavourable to that party’s position, and make a finding of fact based on that conclusion,

c.    Dismiss the claims brought by a party that did not comply with the CRTA, a rule or an order, and

d.    Require the non-compliant party to pay to another party any fees or other reasonable expenses that arose because of a party’s non-compliance with the CRTA, a rule or an order.

22.   Rule 1.4(3) says that to determine how to proceed when a party is non-compliant, the CRT will consider:

a.    Whether an issue raised by the claim or dispute is of importance to persons other than the parties to the dispute,

b.    The stage in the case management process at which the non-compliance occurs,

c.    The nature and extent of the non-compliance,

d.    The relative prejudice to the parties of the CRT’s order addressing the non-compliance, and

e.    The effect of the non-compliance on the CRT’s resources and mandate.

23.   I find that in the circumstances of this case, it is appropriate to dismiss Ms. Mu’s claims for accident benefits. I say this because despite being given several opportunities to further her claim, Ms. Mu has refused to particularize her claim for accident benefits, and Mr. Bauer insists the Dispute Notice should stand as a “bare bones” placeholder until such time as Ms. Mu wishes to further the claim, or not.

24.   As noted above, Ms. Mu does not currently seek any specific accident benefits, but rather wishes to preserve her limitation period to seek accident benefits at some future time. However, in Mu v. ICBC, 2020 BCCRT 267, I already decided that is inconsistent with the CRT’s mandate and section 103 of the IVR which sets out the process for obtaining accident benefits.

25.   I find Ms. Mu’s non-compliance with the CRT’s process is significant. I find to allow the dispute to continue would be inconsistent with the CRT’s mandate and would waste the CRT’s resources, given that Mr. Bauer refuses to participate.

26.   In considering the relative prejudice to the parties, I find there is no prejudice to Ms. Mu because, as mentioned in my previous decisions, dismissing this dispute does not prevent Ms. Mu from making a future application for a determination of entitlement to accident benefits if necessary, subject to the applicable limitation periods set out in section 103 of the IVR.

27.   Given all the above, I dismiss this dispute.

 

ORDERS

28.   I order Ms. Mu’s claims, and this dispute, dismissed.

29.   Under its rules, the CRT can make orders about payment of fees or reasonable dispute-related expenses in the case of a withdrawal or dismissal. Given Ms. Mu’s non-compliance, I find no fee refund is justified, and none is ordered.