Licence Appeal Tribunal
Tribunal file number: 16-002706/AABS
Case Name: 16-002706 v TD General 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:
Applicant (a minor, by her litigation guardian R.S.)
Applicant
and
TD General Insurance Company
Respondent
DECISION ON COSTS
Adjudicator: Louise Bélanger-Hardy
Representatives:
For the Applicant: Pasquale F. Maiolo, Paralegal
For the Respondent: Samantha Mason, Counsel
Heard in writing: March 6, 2017
A. Overview
This matter is related to a claim arising from a motor vehicle accident that took place in Ontario on December 23, 2012. The applicant was a passenger in the vehicle. Her sister, Ms. H.S., was involved in the same accident and makes exactly the same submissions on the motions for costs. I have thus made the same decision and provided identical reasons for both files.
The applicant submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) on September 16, 2016 regarding three claims for medical benefits, “special damages”, “expenses of this hearing as per Rule 19” and interest. TD General Insurance Company (the “respondent”) filed a response dated September 22, 2016 wherein a request for the production of a number of documents was made. On November 17, 2016, the respondent repeated its request for production of documents.
The case conference was held by the Tribunal on December 1, 2016. The parties were not successful in their negotiations and the matter was set down for a written hearing to take place on February 6, 2017. The applicant was required to file her submissions by January 3, 2017 and the respondent its reply by January 18, 2017.
On December 2, 2016, the applicant provided the respondent with some of the documents she had agreed to produce.
There is evidence the parties exchanged emails regarding settlement during the month of December 2016 but the matter was not resolved.
On January 3, 2017, the applicant sent a Notice of Withdrawal to the Tribunal. The next day, January 4, the Tribunal sent a letter to both parties advising them that the file was closed and the February 6, 2017 hearing cancelled (the “closing letter”).
On January 16, 2017, the respondent filed a Notice of Motion requesting costs pursuant to Rule 19. 1 of the Tribunal’s Rules of Practice and Procedure, Version 1 (the “Rules”).
On January 25, 2017, the Tribunal sent a Notice of Written Motion Hearing to the parties advising them that the costs motion would be heard by way of a written hearing on March 6, 2017.
On February 9, 2017, the applicant filed a Notice of Motion seeking costs against the respondent pursuant to Rule 19.1.
On February 14, 2017, the Tribunal ordered that the two motions be combined and heard together by way of written hearing on March 6, 2017.
The parties provided submissions, responses and replies to both motions.
I note that, in her submissions, the applicant states that the Tribunal granted the respondent’s motion for costs. This is incorrect. Upon receipt of the Notice of Motion on January 26, 2017, the Tribunal simply set the matter down for a written hearing.
B. Issues and Result
Is the respondent entitled to recover costs pursuant to Rule 19.1 of the Rules? I have determined that the respondent is not entitled to recover costs. The respondent’s motion for costs is therefore denied.
Is the applicant entitled to recover costs pursuant to Rule 19.1 of the Rules? I have determined that the applicant is not entitled to costs either. The applicant’s motion for costs is therefore denied.
C. Submissions
In response to the respondent’s January 16, 2017 motion for costs, the applicant submits that the proceeding ended with her Notice of Withdrawal and the Tribunal’s subsequent closing letter and that the motion must be denied on that basis. The applicant relies on the Tribunal’s decision in Applicant v. Intact Insurance to support its position. In that decision, the adjudicators noted that “a proceeding ends when there is a notice of withdrawal, all issues in dispute have been resolved, or the Tribunal has given its decision after a hearing”.1 The applicant submits that the respondent should have sought costs in writing at the time it provided its response to the Tribunal or, orally at the Case Conference. The applicant further submits that a party has a right to withdraw without consent.
In reply, the respondent submits that a withdrawal “cannot possibly constitute a ‘resolution of the issues in dispute’ if it is open to the applicant to resubmit a subsequent Application for the same issues.” The respondent further submits that it was only when the applicant withdrew her application that it became clear a motion for costs was justified. To require an insurer such as the respondent to request costs in advance of a withdrawal would lead to requests for costs on a “just in case” basis. According to the respondent, while the applicant could withdraw her application without its consent, doing so without prior notification to the other party should not preclude the latter from seeking costs. The respondent further submits that had the Tribunal considered this motion to be without merit, it could have dismissed it as per Rule 3.4 of the Rules.2
In addition to their submissions on the impact of the applicant’s Notice of Withdrawal on the motions for costs, both parties have made submissions based on Rule 19.1. which permits a party to request costs where they believe another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
The respondent, who was the first party to file a motion for costs, submits that the applicant has acted unreasonably and/or frivolously and that this has resulted in significant costs because of the need to respond to the application and attend the case conference. In its opinion, the applicant started her application prematurely and failed to provide documents to the respondent in a timely manner before the case conference. In the respondent’s view, the applicant used the Tribunal “as a means of negotiation for settlement discussions when such was not necessary and premature”. The respondent also refers to Rule 3.13 of the Rules and submits that the applicant proceeded in a manner which precluded a fair, open and accessible process, and precluded effective participation by all parties. In the alternative, the respondent submits that the applicant should be precluded from submitting a new application with the Tribunal given the unreasonable and frivolous nature of her actions.
For its part, in support of its own motion for costs, the applicant submits that she incurred significant costs and distress due to the respondent’s bad faith, frivolous, vexatious and unreasonable behavior in seeking costs on January 16, 2017. In her view, the respondent ought to have known its motion for costs was without merit. The applicant suggests that the respondent’s motion was a way to intimidate her in abandoning her claim and not filing a new application. The applicant further submits that the respondent failed to request costs at the time of the case conference contrary to Rule 19.2.
Analysis and Reasons
I will first address the parties’ submissions on the consequences of the withdrawal.
The Tribunal’s jurisdiction to award costs is found in the [Statutory Powers Procedure Act]4 (SPPA) and in its own Rules. Rule 19.1 provides that party may make a request of costs “when a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith”. Rule 19.2 provides that “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. Rule 2.17 defines “a proceeding” as “the entire Tribunal process from the start of an appeal to the time a matter is finally resolved”.
With these rules in mind, the question I must answer is whether the matter was “finally resolved” when the respondent’s motion for costs was filed with the Tribunal.
I note that the applicant filed the Notice of Withdrawal on January 3, 2017 and the Tribunal issued the closing letter on January 4, 2017 stating that the Tribunal had “closed the above-noted file”. The respondent’s motion for costs was sent to the Tribunal 12 days later, on January 16, 2017.
The applicant had the right to withdraw her application – a point recognized and accepted by the respondent in its submissions. Once an application is withdrawn, the Tribunal has nothing to decide. The fact the applicant has the option of bringing the issues back before the Tribunal is irrelevant to the issues before me. In addition, as the Tribunal has already noted in one of its earlier decision, N. P. M. T. v State Farm Insurance Company,5 “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 Licence Appeal Tribunal. As such, a costs award will not be granted merely because a withdrawal has caused another party inconvenience”.
In summary, once the matter was withdrawn, the Tribunal no longer had any role to play in the proceedings. This applies to the motions for costs brought by both the applicant and the respondent.
In the alternative, had it been necessary to address the parties' other grounds for costs, I would have found that neither party led evidence of unreasonable, frivolous or vexatious behaviour, or conduct in bad faith pursuant to the criteria in Rule 19.1.
Decision
- For the reasons given above, I deny both the respondent’s and the applicant’s motions for costs.
Released: June 27, 2017
Louise Bélanger-Hardy
Adjudicator
Footnotes
- 2016 CanLII 60729 at paragraph 22 (ON LAT).
- Rule 3.4 deals with the Tribunal’s right to dismiss an appeal without a hearing. The grounds on which this decision can be made include “a) the appeal is frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process”.
- Rule 3.1 states that the Tribunal’s Rules “will be liberally interpreted … to a) Facilitate a fair, open and accessible process and to allow effective participation by all parties”… .
- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
- 2016 CanLII 96160 at paragraph 17 (ON LAT).