Tribunal File Number: 16-000484/AABS
Case Name: 16-000484 v RBC General Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
A. M.
Applicant
and
RBC General Insurance Company
Respondent
ORDER
Adjudicator: Terry Hunter, Vice Chair
Appearances:
Counsel for the Applicant: Shahen Alexanian
Counsel for the Respondent: Cary N. Schneider
INTRODUCTION
- A written motion hearing was held on January 26, 2017. I find the respondent is not entitled to costs. These are the reasons for my decision.
BACKGROUND
Both parties submitted extensive submissions and authorities in support of their positions. The Tribunal is indebted to counsel for the thoroughness of their submissions.
The applicant claimed accident benefits from the respondent as a result of an automobile accident on September 28, 2014. The applicant claimed a number of benefits which were denied by the respondent. The application to the Licence Appeal Tribunal was commenced June 1, 2016.
July 14, 2016 the applicant consented to the respondent’s request for an adjournment of the case conference scheduled for July 27, 2016 due to a scheduling conflict. The respondent noted that a number of productions had been submitted and they required a short period of time to review prior to the rescheduled case conference.
The case conference was held August 16, 2016 and the case conference adjudicator ordered the applicant to make a number of productions requested by the respondent by August 29, 2016 and to provide written submissions by September 9, 2016.
It is uncontested that the applicant failed to meet the prescribed timelines in the case conference order.
On September 15, 2016 the applicant withdrew his application.
A series of emails between the parties and the Licence Appeal Tribunal (LAT) illustrates the parties’ position concerning the withdrawal.
i) September 13, 2016 counsel for the respondent emailed counsel for the applicant and LAT: “I look forward to hearing from the LAT as to the above right to unilaterally withdraw. I will then consider our position regarding our response to the claimant seeking to withdraw from the arbitration including but not limited to Rule 19.”
ii) September 13, 2016 counsel for the applicant emailed counsel for the respondent advising they were just beginning to receive all documents necessary.
iii) September 15, 2016 at 11:27 a.m., the applicant emailed to the respondent and LAT a notice of withdrawal. The applicant advised he spoke to LAT and a notice of withdrawal is not considered a waiver of future right to reapply. The applicant notes he has some medical and income records, not all.
iv) September 15, 2016 at 11:47 a.m. the respondent challenges the applicant’s right to withdraw unilaterally.
v) September 15, 2016 at 12:20 p.m. the applicant’s requests the respondent’s consent to an adjournment to keep the application alive. There is no response.
vi) September 15, 2016 at 12:44 p.m. the respondent emailed LAT and the applicant: “the claimant does not have records to prove claim”, “it is an abuse to start an application for arbitration and then withdraw”.
RESPONDENT’S POSITION
The respondent’s position is that the applicant failed to abide by the two orders of the case conference adjudicator. The respondent states the applicant blatantly disregarded these orders producing wasted costs for the respondent.
The respondent states the Tribunal should look to guidance for what causes a party to a proceeding to have acted “unreasonably, frivolously, vexatiously, or in bad faith” to other statutes that employ the same language. Specifically the respondent refers to the Ontario Municipal Board Rules of Practice and Procedure and the Ontario health Professions Appeal and Review Board both of which describe unreasonable, frivolous, vexatious or bad faith conduct as “failing to comply with a procedural order or direction of the Board” and “failing to adequately prepare for a hearing.”
APPLICANT’S POSITION
The applicant’s position is he had taken steps beginning in May 2016 and continuing through October 2016 to obtain all the requested documentation. The applicant submits in support of his attempts to obtain the relevant productions the Affidavit of the Hammed Chenzaie, applicant counsel’s law clerk, sworn December 15, 2016 which in details all of the applicant’s effort to obtain documentations.
The applicant submits that when the respondent failed to respond to a request to adjourn, he withdrew the application in order to permit more time to obtain the requested documentation to better facilitate settlement discussions or, failing that, to permit a fair hearing on the merits. The applicant’s position is there is nothing unreasonable about this course of action.
ANALYSIS AND DECISION
The Tribunal has not adopted Rules similar to the Tribunal Rules advanced by the respondent. This is illustrated by the Reconsideration Decision in Tribunal File 16-000474/AABS by Executive Chair, Linda Lamoureux. The decision states: “a withdrawal of an application alone will rarely, if ever, be a sufficient basis on which the Tribunal will make a cost order. Access to justice is central to the mandate of the Safety, Licencing Appeals and Standards Tribunal Ontario and the Licence Appeal Tribunal. As such, a cost 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.”
The respondent was clearly concerned about the unilateral withdrawal and whether it was permitted by LAT. If the respondent had reacted positively to the applicant’s request for an adjournment the withdrawal may have been avoided. Lack of a response to the request was unfortunate particularly when the respondent had been accommodated earlier when they requested consent to an adjournment from the applicant.
The respondent characterizes the applicant conduct in not meeting the orders from the case conference adjudicator as blatant. I do not see it as such. I find that on the evidentiary record filed in this motion that substantial efforts were made to comply with the orders. I find the respondent could have reacted positively to the request for an adjournment made September 15, 2016. I also find that the Tribunal and it processes were new and it would be expected that parties would experience a learning curve.
In conclusion I find on the evidence before me the respondent has not on the balance of probabilities proven its entitlement to costs.
Date of Issue: April 24, 2017
Terry Hunter, Adjudicator