A hearing regarding disputed medical benefits and catastrophic impairment was scheduled over eight days. The hearing was originally scheduled for July of 2021, but was rescheduled to begin on January 18, 2022. Due to a scheduling conflict, the hearing that was supposed to take place consecutively beginning January 18, 2022, was bifurcated, and the remainder of the hearing days were rescheduled to March 28-30, 2022. Claimant’s counsel intended to call an insurer’s assessment examiner, Mr. Kaplun, who was allegedly served with a summons. Mr. Kaplun denied any recollection of receiving a summons by personal service. At some point in advance of the March 2022 hearing dates, counsel for the insurer advised that he spoke with Mr. Kaplun and asked him the details of the alleged summons service. Upon hearing the details, the insurer’s counsel told Mr. Kaplun that he did not think it was a valid summons, but that he should seek legal advice on the issue. On January 29, 2022, Vice-Chair Lester issued an Order stating that, among other things, Mr. Kaplun was required to attend. Mr. Kaplun did not attend the hearing on his scheduled date, but did eventually attend on the last day of the hearing. Mr. Kaplun gave testimony that he did not speak to anyone at the claimant’s law office as they did not hire him (the insurer did), and further stated that the insurer’s counsel did not offer him any legal advice, but simply indicated that if Mr. Kaplun had not been served personally, then it would not be a valid summons. Claimant’s counsel alleged that defence counsel interfered with Mr. Kaplun’s testimony and attendance and violated article 5.1-2 (j) of the Rules of Professional Conduct by “improperly dissuade[ing] a witness from giving evidence or advise[ing] a witness to be absent”. Claimant’s counsel further alleged that defence counsel was guilty of contempt of court by poking fun at claimant’s counsel’s allegations, and making a joke about possible “jail time” if found guilty. Claimant’s counsel requested that the matter be referred to the Divisional Court and filed a motion. Vice-Chair Lester reviewed the evidence of the case and ruled that claimant’s counsel did not establish a prima facie case for contempt or violation of the rules. Although Vice-Chair Lester found that defence counsel’s conduct, including his conversation with Mr. Kaplun, ought not to have happened, she saw no evidence this was a calculated or deliberate attempt to interfere with justice. The fact that Mr. Kaplun attended the hearing (although late) was further evidence in support of this conclusion. Vice-Chair Lester dismissed the motion, and advised claimant’s counsel that they may file a complaint with the Law Society if they so choose.
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