Tribunal File Number: 16-000474/AABS
Case Name: 16-000474 v Aviva 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 and in the motion brought by the respondent.
Between:
N.S.
Applicant
and
Aviva Insurance Company
Respondent
MOTION DECISION
Decision made by: Heather Trojek, Vice Chair
Date of Order: November 14, 2017
BACKGROUND
The applicant was injuired in a motor vehicle accident on June 10, 2015. He applied for benefits under the Statutory Accident Benefits Schedule-Effective after September 1, 2010 (the “Schedule”).
After the respondent denied her entitlement to a physiotherapy treatment plan and assessment and ongoing income replacement benefits, the applicant commenced an appeal to the Licence Appeal Tribunal (“the Tribunal”) on May 30, 2016.
The parties particapted in a case conference on July 27, 2016; they were unable to resolve the issues in dispute and a date for a hearing was set. A written and in-person hearing was scheduled for August 30, 2016. The applicant’s written submissions were due on August 15, 2016.
The applicant withdrew her application by filing a Notice of Withdrawal with the Tribunal on August 22, 2016.
Prior to the applicant withdrawing her application, the respondent had, on a number of occasions, requested it be awarded costs as a result of the applicant’s failure to comply with Tribunal Rules and Orders made at the case conference.
The respondent filed a motion seeking costs in the amount of $9,297.86. It seeks to recover costs based on the legal fees it has expended in defending this claim.
The respondent submits that the applicant’s conduct in this proceeding was unreasonable, frivolous, vexatious or in bad faith.
ISSUES
- The following issues are to be determined in this motion:
a. Is the respondent entitled to costs under Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April1, 2016) (the “Rules”)? Specifically, was the applicant’s conduct during the course of the proceeding either unreasonable, frivolous, vexatious or in bad faith?
b. Does the Tribunal have jurisdiction to award costs?
c. If the answer to the above is in the affirmative, what is the appropriate quantum of costs to be awarded to the respondent?
RESULTS
a. The respondent is not entitled to costs.
b. The applicant’s conduct during the course of the proceeding was not unreasonable, frivolous, vexatious or in bad faith;
c. Because of my finding regarding the applicant’s conduct, it is not necessary for me to address the issues related to jurisdiction.
SUBMISSIONS
Respondent’s position
- The respondent submits that it is entitled to costs because the applicant;
a. filed an application with the Tribunal when the claim was without merit and not ready to proceed to a hearing;
b. did not serve thecase conference summary on the respondent in accordance with the timelines as set out in the Tribunal’s Rules;
c. did not file written submissions in accordance with the Tribunal’s order; and
d. the application was withdrawn without the respondent’s consent after the respondent had filed its written submissions for the hearing.
Applicant’s position
- The applicant submits that the respondent is not entitled to costs because;
a. filing an application and exercising her right to dispute the respondent’s denial of benefits is not unreasonable, frivolous, vexatious or done in bad faith;
b. she attempted but was unable to obtain the documents required to have a fair and full hearing based on the merits of her claim;
c. the respondent’s opposition to the adjournment was unreasonable;
d. the applicant had no alternative other than to withdraw the application when the adjournment request was denied;
e. the Tribunal’s processes at the time the application was filed were still new and unknown to the parties and that this uncertainty should be considered when rendering its decision.
ANALYSIS
- Rule 19 requires the respondent to establish on a balance of probabilities that the applicant’s conduct in the course of the proceeding was unreasonable, frivolous, vexatious or in bad faith.
Merit of the Claim
The respondent argues that because the applicant filed a claim that does not have merit it should be awarded costs. Every applicant has the statutory right to file an application with the Tribunal within two years of a claim being denied. Determing whether or not an application will be dismissed is the function of the Tribunal. A decision on the merits of a claim is made by an adjudicator after hearing the submissions and weighing the evidence presented by both parties. Simply filing an application regardless of whether the applicant is able to prove on a balance of probabilities that she was entitled to the benefits claimed is not on basis upon which the respondent would be awarded costs.
Therefore, I disagree with the respondent that it is entitled to costs because the application, in the opinion of the respondent, lacked merit.
Case Conference Summary
The respondent asks for costs because the applicant did not file the case conference summary ten days in advance of the case conference pursuant to the Tribunal’s Rules.
The applicant filed her case conference summary 1 day before the case conference. Upon receipt a case management officer at the Tribunal forwarded a copy of the case conference summary to the respondent. The case conference adjudicator provided the respondent with the opportunity to review the applicant’s case conference summary at the beginning of the case conference.
While not ideal, I am unable to find the late filing of the case conference summary by the applicant to be so egregious that it should attract costs as a punitive measure.
Initial submissions and Request to Adjourn the Hearing
The respondent argues that the applicant should be ordered to pay costs because she failed to file initial submissions by August 15, 2016, the date ordered by the case conference adjudicator and because of her request to adjourn the hearing.
I disagree with the respondent. When the events that transpired are taken into conisderation, I am unable to find that the action’s of the applicant or her counsel justify an award for costs.
At the case conference, a paralegal for Alexanian Law Firm, which represents the applicant, attended in place of Mr. Alexanian.
The case conference took place on July 27, 2016. A case mangement case officer at the Tribunal forwarded the conference report and order to the parties via e-mail on August 16, 2016.
On the same day he received the case conference report and order, Mr. Alexanian wrote to the Tribunal. In his August 16, 2016 letter, Mr. Alexanian explained that the filing deadlines for submissions and evidence and date of the in-person hearing were scheduled by a member of his law firm who was unaware of his vacation schedule. He requested the hearing be adjourned because he had previously booked a family vacation and had not taken vacation in several years.
The respondent opposed the adjournment request and filed its hearing submissions. The Tribunal denied the adjournment request, in part, because the respondent did not consent.
I note that the Tribunal’s case conference report and order were emailed to the applicant’s counsel on August 16, 2016, which was 20 days after the case conference and 1 day after the applicant’s initial submissions were due. As soon as Mr. Alexanian received the case conference report and order, he immediately contacted the Tribunal. I do not find this conduct to be unreasonable.
Although unfortunate, scheduling and other errors do occur. I do not find a pattern of behavior or conduct on behalf of the applicant that would warrant an order for costs. The applicant’s conduct cannot be viewed in isolation or out of context. When I take into consideration Mr. Alexanian’s explanation regarding the scheduling error of his staff member and the Tribunal’s delay in forwarding the case conference report and order to the parties, I am unable, on a balance of probabilities, to find the applicant’s conduct to be unreasonable, frivolous, vexatious or in bad faith.
Withdrawal of the Application
- Regarding the applicant’s withdrawal of her application, I am persuaded and guided by the reconsideration dated October 19, 2016 in this case. Executive Chair Lamoureux 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, Licensing Appeals and Standards Tribunal of 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 withdrawal, there must be sufficient evidence that the applicant has engaged in a course of conduct that is unreasonable, frivolous, vexatious or in bad faith.”
I agree with the applicant that the respondent’s opposition to the adjournment provided her with no alternative but to withdraw the application.
After the adjournment request was denied, the applicant filed productions for the hearing with the Tribunal and indicated that some productions and witness affidavits could not be produced for various reasons.
If the applicant did not withdraw her application and proceeded with the hearing, she would not be able to submit all the the evidence she intended to rely upon. It would not have been possible for her to have a full hearing on the merits of her case. One of the primary goals of the Tribunal is to provide the access to justice. Knowing that she did not have all the evidence that she needed to present her case, I find that the applicant did not act unreasonably in withdrawing her application.
Change in Jurisdiction from the Financial Services Commission of Ontario (FSCO)
Finally, I agree with the respondent that when the applicant filed her application, the Tribunal had only recently assumed jurisdiction from FSCO. The Tribunal’s Rules regarding costs, expedited timelines and use of written submissions prior to in-person hearings were relatively new to the parties.
The timelines under which the Tribunal operates are substantially shorter than they were under the previous regime. The application was filed on May 30, 2016, the case conference took place on on July 27, 2016 and the written and in-person hearing date was set for August 30, 2016. The filing date for written submissions and evidence by the applicant was set for August 15, 2016. Although the parties agreed to the aforementioned timetable, the dates they agreed on are extremely short.
In light of the newness of the Tribunal and the short timeframes set for the hearing, I do not find the applicant’s conduct was unreasonable or friviouls, vexatious or in bad faith.
CONCLUSION
Based on the evidence before me, I find that the respondent has not proven entitlement to costs on a balance of probabilities.
The respondent’s motion for costs is denied.
Released: November 27, 2017
Heather Trojek, Vice Chair