Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3
In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2
Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3
Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2
Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda Lamoureux, Executive Chair
Date: October 19, 2016
File: 16-000474/AABS
Case Name: 16-000474 v. Aviva
Written Submissions By: Andrea D’Addese, Kostyniuk & Greenside, Counsel for Aviva
Overview
On June 17, 2016, the Licence Appeal Tribunal (the “Tribunal”) received an Application by an Injured Person by the applicant in the above noted matter.
On August 17, 2016, the applicant advised she wanted to withdraw her application and on August 22, 2016 submitted a Notice of Withdrawal.
Prior to receiving the Notice of Withdrawal, the respondent made a request for dismissal of the application with costs. After the withdrawal of the application, the respondent reasserted this claim for costs. The Tribunal did not consider the request.
On September 30, 2016, the respondent requested a reconsideration of the Tribunal’s decision in respect of a request for costs.
Decision
- For the reasons that follow, I grant the respondent’s request for reconsideration.
Discussion and Reasons
- The criteria for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, which states that the Executive Chair will not grant a request for reconsideration unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
I have reviewed the respondent’s request for reconsideration. I am satisfied that in this case the decision should be reconsidered. In particular, I am satisfied that the Tribunal violated the rules of procedural fairness in not considering the respondent’s August 16, 2016 request for dismissal and costs.
A case conference was held in this matter by teleconference on July 27, 2016. At the case conference, a hearing date was scheduled and deadlines for written submissions and productions set. These were set out in an Order dated August 15, 2016.
On August 16, 2016, the respondent wrote to the Tribunal and requested that the matter be dismissed with costs on the basis that the applicant had not provided her submissions by the due date of August 8, 2016 as ordered by the Tribunal.
On August 17, 2016, the Tribunal and the respondent received correspondence from the applicant seeking to withdraw the application and in the alternative seeking an adjournment. The applicant’s letter also invited the respondent to affirm whether it was requesting costs.
On August 17, 2016, the Tribunal wrote to the applicant requesting that the adjournment request be placed on the Adjournment Request form. Further, the Tribunal advised that the request to withdraw must be submitted on the Notice of Withdrawal form.
On August 19, 2016, the Tribunal wrote to the applicant denying the adjournment.
On August 22, 2016, the applicant submitted the Notice of Withdrawal form to the Tribunal and copied the respondent.
On August 24, 2016, the respondent requested an update on the Notice of Withdrawal and their submission for costs. The Tribunal advised that the matter was before a Vice Chair.
On August 29, 2016, the respondent was sent an administrative closing letter that advised of the withdrawal. The letter did not address the issue of costs.
On September 8, 2016, the respondent requested that the Tribunal address their costs submissions as previously submitted and received by the Tribunal on August 16, 2016.
On September 15, 2016 the Tribunal wrote to the respondent and advised that:
This application in the above noted matter was withdrawn by the Applicant on August 22, 2016. The Respondent was not entitled to a hearing on the dismissal of the application to dismiss on costs.
The Tribunal has not retained any jurisdiction to consider the matter further.
The respondent asserts that the grounds for costs have been established based on the applicant’s behaviour during the proceeding. Further, the respondent asserts that the Tribunal had not dealt with the request for costs.
I find that the Tribunal’s failure to respond to the respondent’s August 16, 2016 request for costs was a breach of procedural fairness.
Without deciding any of the issues in the present matter, I would note that the Tribunal’s jurisdiction to award costs is found in the Statutory Powers and Procedures Act and its own Rules. A withdrawal of an application alone will rarely, if ever, be a sufficient basis on which the Tribunal will make a costs order. Access to justice is central to the mandate of the Safety, Licensing Appeals and Standards Tribunals Ontario and the Licence Appeal Tribunal. As such, a costs award shall not be granted merely because a withdrawal has caused another party inconvenience. In the case of a withdrawal, there must be sufficient evidence that the Applicant has engaged in a course of conduct that is unreasonable, frivolous, vexatious or is in bad faith.
Decision
Based on the above, I grant the respondent’s request for reconsideration and send the matter back to an adjudicator to be determined.
Linda P. Lamoureux Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: October 19, 2016