Tribunal File Number: 17-000638/AABS
Case Name: 17-000638 v Nordique Insurance
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:
J. P.
Applicant
and
Nordique Insurance
Respondent
DECISION ON COSTS
Adjudicator: Cezary Paluch
APPEARANCES:
For the Applicant: Christopher D.J. Hacio, counsel
For the Respondent: Linda M. Kiley, counsel
Heard in-writing: September 18, 2017
OVERVIEW:
1The applicant was injured in an automobile accident on December 10, 2011 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (AABS) (the “Tribunal”).
3A case conference was conducted on April 6 and 7, 2017 where the parties were unable to settle the issues in dispute and an in-person hearing was scheduled for three days on August 28, 29, and 31, 2017 in Thunder Bay.
4On May 17, 2017, a Case Conference Report (the “Case Conference Report”) and Order (the “Order”) was released to the parties confirming the hearings details and setting out procedural steps.
5On August 15, 2017, the applicant’s counsel sent an e-mail that his client was accepted as being catastrophically impaired by the respondent. This was confirmed by the respondent in a letter dated August 18, 2017.
Applicant’s Motion
ISSUE TO BE DECIDED
6On August 18, 2017, the applicant field a Notice of Motion requesting the following:
- legal fees, costs, and disbursements including the cost of the catastrophic reports.
7On August 22, 2017, Vice Chair Trojek, issued an Order setting a timetable for written submissions with respect to the applicant’s motion for costs as the issue to be determined at the in-person hearing was no longer in dispute.
8Those submissions form the basis for this decision.
RESULT
9I make the following findings and order:
i. I find that the applicant is not entitled to recover costs.
ii. The claim for costs is dismissed.
THE LAW
10The Tribunal’s jurisdiction to award costs is found in section 17.1 of the Statutory Powers and Procedures Act (“SPPA”) and Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”).
11Section 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 a party has acted in bad faith.
12Rule 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.
13Rule 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.
APPLICANT’S POSITION
14The applicant submits that he has little or no financial resources to fund the legal fees and disbursements in this proceedings that he was forced to incur because the respondent failed to recognize that he had sustained a catastrophic impairment as a result of the accident until August 15, 2017, less than 2 weeks before the hearing.
15The applicant also submits that the respondent did not produce two reports from Sullivan & Associates and from Partners in Rehab to the applicant in violation of the Rules and the Order and this represents unreasonable, frivolous and bad faith conduct on the part of the respondent.
16Finally, the applicant also submits the respondent brought a motion to prevent the applicant from relying on these two reports.1
RESPONDENTS POSITION
17The respondent’s position is that it has not acted without reasonable or probable grounds in denying the CAT claim because it received two multidisciplinary reports that concluded that the applicant did not sustain a catastrophic impairment and at the time of the case conference the applicant had consumed less than $1,000.00 in med/rehab expenses. It denies that it made inappropriate, unreasonable, critical or demeaning comments about the applicant or his life choices.
ANALYSIS
18The applicant is the moving party on this motion and has the onus to prove on a balance of probabilities that the respondent acted unreasonably, vexatiously, frivolously or in bad faith.
19The words, “unreasonably, vexatiously, frivolously, or bad faith” are not defined in the Rules or the SPPA. However, in 16-000066 v Waterloo Regional Municipalities Insuranc2, Executive Chair Lamoureux, cited the Black’s Law Dictionary meaning of the word “vexatious” to mean that a party acting without reasonable or probable cause or excuse or merely wishes to annoy or harass his or her opponent, such conduct could be said to be “vexatious". With respect to the meaning of the word “frivolous”, Executive Chair Lamoureux went on to say that a party could be said to have acted “frivolously” if the claim lacked a legal basis or legal merit; it was not serious or not reasonably purposeful; was clearly insufficient on its face; or where no rational argument based upon the law could be presented in support of that claim.
20I find that the respondent acted reasonably in relying on its medical evidence and that the applicant consumed less than $1,000 in med/rehab expenses to initially deny that the applicant’s catastrophic claim. I am not persuaded that the respondent’s course of conduct, including the motion to exclude the two reports, can be considered to be anywhere near the threshold of unreasonable, frivolous, vexatious or in bad faith. While I agree that it would have been preferential to have the matter settled earlier in the process and the delay may have caused inconvenience to the applicant, however, inconvenience and the expense of preparing for a hearing, are not grounds to award costs under Rule 19.
21As much as I am sympathetic to the applicant’s difficulties to fund this proceeding or that he cannot work and this has caused him financial hardship, this is not a consideration for me to award costs. Moreover, parties are free to negotiate costs and disbursements between themselves as they settle files.
22The applicant submits that the parties at the Case Conference agreed to produce any and all relevant documents that should come into their possession after the date of the Case Conference and prior to the hearing date. However, my reading of the Order only makes reference to serve and file the 11 items listed documents in paragraph 7 no later than 30 day prior to the hearing. I do not see how this Order was breached. Moreover, the Case Conference Report under the heading “Exchange of Documents” states that: “The parties raised no objections to the production of documents to be used at the hearing and do not require an order from the Tribunal.”
23I also note that the Order was reached on consent. Meaning that the parties agreed or accepted its contents. If the applicant wanted certain reports or other relevant documents by an earlier date he should have requested that the adjudicator make an order to that effect including the date by which it had to be produced by the respondent.
24Alternatively, the applicant could have brought a motion for relief. The Tribunal’s Rules address the disclosure obligations of parties in Rule 9. Specifically, Rules
9.1 and 9.3(e) state the Tribunal may at any stage in a proceeding order any party to provide such further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding. Rule 9.3(e) states that a party may seek an order from the Tribunal at any stage of the proceeding ordering a party to disclose any document or thing the Tribunal considers relevant to the issues in dispute.
25I also note that the two reports that the applicant is maintaining should have been provided to him by the respondent were reports of his own service providers. Therefore, it appears, that he could have (as he eventually did) request these reports directly from the service providers at any time and well prior to the hearing date.
26The applicant further submits that he should be entitled to costs because the respondent took a very aggressive stance during the case conference criticising the applicant and his life choices. I note that Rule 19.4 further sets out the requirements for that request, which must include the particulars of the alleged conduct. I do not have an Affidavit from the applicant setting out exactly what alleged demeaning comments were made to him at the case conference. More is required to allow the applicant to meet his evidentiary burden. Certainly, any comments that are demeaning or derogatory towards a party by any person at a case conference are unacceptable and may be met with a cost award. Part of the Tribunal mission is to uphold the highest standards of professionalism to allow for effective participation by all while considering the particular needs of the parties.
ORDER
27For the reasons outlined above, I find that the applicant has not provided sufficient evidence to satisfy Rule 19.1 and the claim for costs is dismissed.
Released: October 27, 2017
Cezary Paluch, Adjudicator
Footnotes
- This motion was never argued because parties resolved the issue in dispute.
- 16-000066 v Waterloo Regional Municipalities Insurance, 2017 CanLII 35320 (ON LAT)