Tribunal File Number: 16-001243/AABS
Case Name: 16-001243 v Aviva Insurance
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
T. B.
Applicant
and
Aviva Insurance
Respondent
DECISION
ADJUDICATOR: Joseph Nemet
APPEARANCES:
Applicant: T.B.
Representative for the Applicant: Rajiv Kapoor
Counsel for the Respondent: Brittanny Tinslay
HEARD: Written Submissions due October 19, 2016
REASONS FOR DECISION AND ORDER
Overview
The applicant was injured in a motor vehicle accident on April 7, 2014. She applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The application identified 6 issues in dispute including a claim for Income Replacement Benefits (“IRB”) from the date of accident. Also in issue was whether or not the applicant's injuries fell within the Minor Injury Guideline.
The Case Conference in this matter was held on October 5, 2016 before me.
Despite discussions aimed at resolving the issues in dispute, the matter did not resolve. The applicant’s representative indicated that he wanted to withdraw the application as he thought it was “premature” to proceed to a hearing within the timelines that would be imposed by the Tribunal. In response, Counsel for the respondent made a request for costs.
The parties were directed to provide submissions on the following issues which I have considered in this decision:
i. First, whether or not the Tribunal has the jurisdiction to entertain a motion for costs in the face of a withdrawal by a party during a case conference without the consent of the other party;
ii. Second, whether or not the respondent, on the facts of this case, is entitled to costs under the current rules of the Tribunal; and,
iii. Third, if costs are ordered, what is the appropriate amount?
Position of the Parties
Jurisdiction to Award Costs
The respondent argues that the Tribunal, in the circumstances of cases such as this one, has the jurisdiction to consider awarding costs pursuant to the Rules of Practice and Procedure (“Rules”) of the Tribunal. The applicant's submissions did not respond specifically to this issue. Rather the applicant limited her submissions to the question of entitlement to costs under the Rules. I do not construe her silence on this point as being either an affirmation or rejection of the respondent's position. The onus is upon the moving party to satisfy me that the Tribunal has the jurisdiction to consider the awarding of costs.
Rule 19 provides as follows:
COST REQUESTS
Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.
HOW COST REQUESTS ARE TO BE MADE
A request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released.
The Rules clearly contemplate an application for costs being made at a case conference. In the circumstances of this case, the applicant has expressed an intent to withdraw however in my view that does not preclude me from addressing the issues of costs.
Further, I accept the respondent's submission that section 23(1) of the Statutory Powers and Procedure Act (“SPPA”) when read in conjunction with the Rule 14.1 of the Rules provides that a member conducting a case conference has the jurisdiction to govern the Tribunal's process once the case conference begins. This includes determining the proper conduct of the proceeding and avoiding abuses of the process.
Is the Respondent Entitled to Costs under Rule 19?
The respondent argues that the applicant acted frivolously and cites the Oxford English Dictionary definition: “futile...not serious...”. It provides a list of examples including:
i. The applicant withdrew her entire IRB claim except for one week and notice of her disability was not provided to the insurer until after 104 weeks post-accident;
ii. The applicant did not provide any supporting evidence for her claim to the insurer over the course of the 2.5 years from the date of accident;
iii. The information from the family physician during the case conference did not support the Applicant's position regarding the issues in dispute; and,
iv. The applicant stated during the case conference that he believed the matter was “premature”.
In conclusion, the respondent states that the applicant knowing that her case was premature with no supporting evidence filed an application to the Tribunal which required the respondent Insurer to retain counsel, prepare a response, prepare for the case conference and incur “significant” costs to respond to the application.
The applicant argues that she acted reasonably throughout the process and denies strongly the respondent’s suggestion that there is no supporting evidence. The applicant points to a number of medical reports filed, many from the insurer's own IE reports that support the applicant’s position that she continues to suffer from ongoing impairments.
It is submitted that the applicant filed the application to the Tribunal in the hopes of achieving some form of resolution. She argues that she participated in the case conference in hopes of achieving a fair and efficient resolution of the issues in the proceeding. When that was not deemed possible, she respectfully requested that the application be withdrawn. In withdrawing at an early stage, she submits that she acted reasonably and saved all parties from expending further time and resources.
Analysis
A party could be said to have acted “frivolously”1 if the claim or defence lacked a legal basis or was not serious or reasonably purposeful.
I have reviewed the submissions and the documents filed by the applicant. The applicant, on at least a subjective basis, alleges in her responding materials that she continues to suffer discomfort and impairment which she relates to the accident. As a result she has a bona fide reason to dispute the respondent's denial of her claim for benefits and her claim could be viewed as reasonably purposeful.
The applicant in her cost submissions indicates that she participated in the case conference in hopes of achieving a fair and efficient resolution to the issues in dispute. That is certainly one of the purposes of a case conference, however it is not its sole purpose. If issues are not resolved then a hearing is scheduled. The material and notices provided to the parties by the Tribunal make that purpose clear.
So the reframed issue in light of the above is: did the applicant act frivolously in proceeding to a case conference without being hearing ready and participated for what appears to be for the purpose of trying to negotiate a resolution to the issues in dispute. While I am of the view that such a strategy is one that should be discouraged and in appropriate cases sanctioned by costs, I am not prepared on the facts of this case to find that the applicant acted frivolously.
Further, there is no evidence on whether or not the applicant and/or her representative suspected or knew that the application was not ready to proceed to a hearing at the time the application was filed and I am not prepared to draw any inferences from the material.
While the respondent may have suspected at the outset of the case conference that the matter was not hearing ready, there is nothing in the file or on the record to indicate that the applicant had in any way advised the respondent. Although frowned upon, it is not unusual in a case conference to have one party file their medical reports late or advise the other party that they are waiting for a report which will be available shortly. It would be reasonable to conclude that the respondent in this case may have been anticipating the late filing of medicals, however the applicant did not file any materials or indicate when any would be available. Not being hearing ready is not necessarily fatal to reaching a settlement.
I do not find that the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith on the facts of this case.
The respondent therefore is not entitled to costs. In making this finding, I note that costs are not meant to prevent parties from bringing forward a claim with merit and accessing the justice system. Costs are also not meant to compensate parties for the cost of defending a claim.
Amount
- Having determined that the respondent is not entitled to costs, it is not necessary to rule on the amount that would otherwise have been appropriate in this case.
ORDER
- Pursuant to the authority vested in it under the provisions of the Act, the Tribunal orders that the respondent’s motion for costs be dismissed.
Released: April 26, 2017
___________________________
Joseph Nemet, Adjudicator
Footnotes
- Black’s Law Dictionary (10th ed. 2014), frivolous: lacking a legal basis or legal merit; not serious; not reasonably purposeful . — frivolousness, n. (or, less good) frivolity, n.