Date: 2017-05-15
Tribunal File Number: 16-003555/AABS
Case Name: 16-003555 v Travellers Insurance Company
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:
S.S
Applicant
and
Travellers Insurance Company
Respondent
DECISION ON COSTS
Adjudicator: Sandeep Johal
APPEARANCES:
Applicant: Did Not Appear
Counsel for the Applicant: Geoffrey Williams
Counsel for the Respondent: Oren Barbalat
Heard via Teleconference on: March 16, 2017
OVERVIEW:
The applicant was injured in an automobile accident on April 21, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').
The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (AABS) (the “Tribunal”).
A case conference was originally scheduled for January 18, 2017 and had to be rescheduled for February 8, 2017 as the applicant had to leave the country to attend to his ill mother overseas.
On February 8, 2017 the case conference was convened for a second time and applicant’s counsel advised the Tribunal that the applicant had to extend his stay overseas and was to return on March 11, 2017. The case conference was adjourned on consent to March 16, 2017.
At the March 16, 2017 case conference the applicant was again not in attendance and his counsel was not able to contact the applicant or members of his family via email or telephone despite numerous attempts to do so. The respondent then made an oral request for costs pursuant to Rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure (the “Rules”).
ISSUE TO BE DECIDED
- Is the respondent entitled to recover costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”)?
RESULT
- Based on the totality of the evidence before me, I find that the respondent is not entitled to recover costs pursuant to Rule 19.1 of the Rules.
THE LAW
The Tribunal’s authority to award costs comes from two sources:
Section 17.1 of the Statutory Powers and Procedure Act (“SPPA”); and Rule 19.1 of the Rules
Section 17.1(1) of the SPPA empowers the Tribunal to order a party to pay another party’s costs in a proceeding according to rules made under s. 17.1(4). Section 17.1(2) states the Tribunal shall not order a party to pay costs unless the conduct or course of conduct of that party has been unreasonable, frivolous or vexatious, or has acted in bad faith.
Rule 19.1 of the Rules mirrors the language of s. 17.1(2) of the SPPA, and provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
Prior to April 1, 2016, under s. 282 (11) of the Insurance Act (“Act”), an arbitrator’s jurisdiction and discretion to award expenses was broad. Unlike Rule 19.1, arbitrators at the Financial Services Commission Ontario (“FSCO”) could consider criteria other than vexatious, unreasonable, frivolous and bad faith behaviour of a party, such as a party’s degree of success in the outcome of the proceeding, the conduct of a party, or a party’s representative, the failure of a party to comply with undertakings or orders, any written offers to settle, and/or any aspect that was improper, vexatious or unnecessary.1
Section 281 (11) of the Act was repealed on April 1, 2016. The Tribunal’s opinion is that the repeal of s. 281 (11) is a clear statement of legislature’s intent to limit the circumstances where the Tribunal can award costs in a proceeding. However, the repeal of s 281 (11) does not prevent parties from negotiating costs and disbursements between themselves as they settle files.
ANALYSIS
Both parties made oral submissions on costs at the case conference of March 16, 2017. I have considered all the submissions made and those submissions form the basis of this decision.
The respondent submits that the applicant acted in bad faith by failing to attend the case conference that was adjourned on multiple occasions and his non-attendance should be considered as evidence of unreasonable behaviour because the adjournments were on consent at the applicant’s request.
The applicant’s counsel submits that costs should not be awarded as the applicant had to return to Gambia to be with his ill mother and for reasons which are unknown, he has not returned to Canada on the date he advised he would. The applicant’s counsel’s position is that this does not constitute unreasonable, frivolous, vexatious or bad faith behaviour and that the respondent was well aware of the situation and circumstances.
In order to award costs a party must adduce evidence of unreasonable, frivolous, vexatious or bad faith behaviour in a proceeding and I am not persuaded that the applicant’s conduct has reached that threshold.
Applicant’s counsel submits that they tried to contact the applicant via email and from the telephone numbers they had on file for him but they received no reply. They further tried to contact his children with the contact numbers they had for them on file but they did not receive any response from them either. One can only speculate on his failure to return and his failure to contact his counsel, however speculation is something that cannot be considered for an award under Rule 19.
Non-attendance by an applicant at a case conference will rarely be considered conduct that would justify a costs award under Rule 19 especially where the circumstances and reasons around the non-attendance are to a certain extent, known. The only evidence I am presented with is that the applicant had to leave the country due to his ill mother. I do not consider that to be anywhere near the threshold of unreasonable, frivolous, vexatious or in bad faith.
Based on the evidence provided, I am not persuaded of unreasonable, vexatious, frivolous or bad faith behaviour in the proceeding.
CONCLUSION
- Cost awards under Rule 19 are not to compensate parties for suffering an inconvenience or for the cost of their involvement in a proceeding.
ORDER
- For the reasons outlined above, I find that the respondent has not provided sufficient evidence to satisfy Rule 19.1 and the claim for costs is dismissed.
Released: May 15, 2017
Sandeep Johal
Adjudicator