Tribunal File Number: 17-000270/AABS
Case Name: 17-000270 v Aviva Canada Inc.
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:
A. G.
Applicant
and
Aviva Canada Inc.
Respondent
DECISION ON COSTS
Adjudicator: Anna Truong
Appearances: Jay Meunier, Counsel for the Applicant Alex Robineau, Counsel for the Respondent
Heard in writing on: May 15, 2017
OVERVIEW
1A.G. (“the applicant”) was involved in an automobile accident on February 5, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant applied for medical and rehabilitation benefits that were denied by the respondent.
2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) on December 20, 2016. Subsequent to the Case Conference and prior to the Hearing, the parties were able to resolve the issues in dispute with the exception of the costs issue.
ISSUES TO BE DECIDED
3The following is the issue to be decided: is the applicant entitled to costs of the proceeding?
RESULT
4Based on the totality of the evidence before me, I find that the applicant is not entitled to costs.
ANALYSIS
5The only evidence submitted by the parties is documentary evidence and I have considered all of the documents submitted. As a teleconference was already scheduled to hear the substantive issues, the parties were permitted to make brief oral submissions to me with respect to costs.
6The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs, if they believe that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.2 provides that a request for costs can be made any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
7The applicant alleges that the respondent has acted unreasonably, which has led him to pursue this claim in order to receive benefits. The applicant submits that the respondent did not properly oversee the file and failed to consider various diagnostic imaging reports that were submitted by the applicant to support the extent of his injuries. The applicant submits that the respondent was unreasonable in its denial of his claim given the numerous objective findings. The applicant further submits that the respondent was unreasonable, because it did not request additional documents prior to the Case Conference and it did not answer any of the three letters sent by applicant Counsel prior to the Application being filed with the Tribunal.
8Rule 19.1 is clear that it is the party’s conduct within a proceeding which attracts cost consequences. Rule 2.17 defines “proceeding” as “the entire Tribunal process from the start of an appeal to the time a matter is finally resolved.” Most of the conduct that the applicant has alleged to be unreasonable did not occur during the proceeding, so I cannot order any costs for the conduct that predated the Application to the Tribunal.
9The applicant argued that while the respondent’s unreasonable conduct began prior to the Application to the Tribunal, the unreasonable conduct continued after the Application, which is during the proceeding. Specifically, the applicant argued the respondent’s failure to respond to his letters, or request further documentation prior to the Case Conference was unreasonable conduct during the proceeding.
10The purpose of Rule 19.1 is clear: to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award, an exceptional remedy. “Unreasonableness” must be read in context with the rest of the rule, and in this case, while I agree that the respondent should have responded to the letters and requested documents in a timelier manner, this behaviour does not meet the bar.
11The respondent upon receiving additional documents, reviewed the applicant’s file, changed its position and approved the applicant’s treatment. This was precipitated by the parties’ participation in the Case Conference. This is the exact purpose of the Case Conference and behavior that is encouraged. Therefore, no costs are payable to the applicant.
CONCLUSION
12For the reasons outlined above, I find that the applicant is not entitled to costs of the proceeding.
Released: June 12, 2017
_____________________________
Anna Truong, Adjudicator