N. F. v. Aviva Insurance Canada
Tribunal File Number: 17-003632/AABS
Case Name: 17-003632 v Aviva Insurance Canada
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:
N. F.
Applicant
and
Aviva Insurance Canada
Respondent
MOTION DECISION
ADJUDICATOR: Samia Makhamra
For the Applicant: N. F.
For the Respondent: Cody Moskovitz, counsel
HEARD in writing: October 17, 2017
Decision:
The respondent’s motion for costs is dismissed.
Overview:
The applicant was involved in a motor vehicle accident on May 2, 2013.
The applicant filed an application with the Tribunal on or around June 9, 2017. He identified the following issues in dispute: income replacement benefits (IRBs), medical and rehabilitation benefits, and housekeeping and home maintenance.
To facilitate settlement discussions, the Tribunal scheduled a case conference for August 17, 2017. I facilitated the case conference.
At the case conference of August 17 the parties did not reach a settlement. A discussion with the parties led (me) to the following conclusions: there was lack of documentation related to the issues in dispute; no denials of the issues were provided; and, (in result) the respondent was not prepared to discuss settlement.
With no denials by the respondent, I addressed the Tribunal’s jurisdiction and explained that a hearing could not be scheduled. Shortly after this the applicant indicated that he wanted to withdraw the application, and quickly hung up the phone.
The respondent brought this motion requesting an order requiring the applicant to pay the costs it incurred in the course of responding to the application.
Analysis and reasons:
The respondent argues that the applicant acted frivolously and refers to decisions by this Tribunal in support of its position. The respondent provided a number of instances to illustrate this point, including: that the application is without merit; the applicant ignored the respondent’s requests for productions; he failed to provide supporting documentation to prove entitlement to benefits (this relates to IRBs); and, he used profane language and his behavior was disrespectful and unprofessional.
The applicant submits that he prepared the application and additional documents in support of his application, that he continues to struggle with impairments from the subject accident, and that he participated in the case conference hoping to resolve the dispute.
The Tribunal has the jurisdiction to consider costs in the Statutory Powers and Procedures Act and its own Rules. Specifically, Rule 19 of the Rules of Practice and Procedure provides as follows:
COST REQUESTS
Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the tribunal for costs.
- In light of the parties’ submissions and the jurisdiction of the Tribunal, to determine whether the applicant acted frivolously or in bad faith as described in Rule 19, I will consider the application and the applicant’s conduct.
Did the applicant’s conduct warrant an award for costs?
Having regard to the evidence and the parties’ submissions, I do not find that the applicant’s conduct in filing his application, preparing for the case conference, or participating in the case conference, amounts to conduct that is unreasonable, frivolous, vexatious or in bad faith.
In this case the applicant submitted an application, a case conference summary, and he called into the case conference to discuss his case. In his submissions he indicates that he participated in hopes of achieving a resolution or settlement to the issues in dispute. The fact that the application was not ready for a hearing, while not desirable, in my view, does not make his claim to the Tribunal frivolous or vexatious. Further, there is no evidence that the applicant knew that the application was not ready to proceed to a hearing.
While I agree with the respondent that the application and the applicant’s case conference summary lack some necessary information, this does not mean that the case conference could not proceed. Indeed, the case conference was the proper proceeding to clarify the issues in dispute, and decide on the next steps in this case.
The material and notices to the parties by the Tribunal make the purpose of the case conference clear, that is, among other goals, to discuss the claims(s), to identify and simplify the issues, to settle, to resolve preliminary issues, to identify areas of agreement, and to determine the next steps in the case.
The parties made submissions related to the substance of the issues in dispute, however, having found that the application and case conference summary were properly before the Tribunal for consideration, I do not need to further address the substance of the issues.
Next I turn to the applicant’s conduct during the case conference. I note that at some point, around the time when I said that the Tribunal could not schedule a hearing (with no denials by the respondent), he used profane language. Is his conduct acceptable? I can say that it is not. However, he quickly retrieved what he said, which tells me that he did have regard for respect and civility during the proceeding. In addition, despite my best efforts, the tone of the case conference was very adversarial, which I believe fueled the applicant’s (even the respondent’s) frustration. While I do not condone the applicant’s conduct, I am not prepared on the facts of this case to find that he acted frivolously or in bad faith.
Lastly, access to justice is fundamental to the mandate of the Tribunal. There needs to be sufficient evidence that the applicant engaged in conduct that is frivolous or is in bad faith, as contemplated by the Tribunal’s Rules, in order for me to award costs. In my view, the applicant filed his application and called into the case conference with the intention of resolving the dispute. Despite his clearly expressed frustration with the appeals process or the respondent’s position, I do not find that he acted unreasonably, frivolously, vexatiously, or in bad faith.
In conclusion, the respondent is not entitled to costs.
Released: November 22, 2017
Samia Makhamra, Adjudicator