Tribunal File Number: 17-002843/AABS
Case Name: 17-002843 v Aviva General 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:
R. K.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
For the Applicant: Mireille Dahab, counsel
For the Respondent: Ken Yip, counsel
HEARD: In Writing : December 5, 2017
OVERVIEW
1The applicant was involved in an automobile accident on October 1, 2015 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 License Appeal Tribunal-Automobile Accident Benefits Service (AABS) the “Tribunal”.
3The parties participated in settlement discussions at the case conference held on June 28, 2017, but were unable to resolve all of the issues in dispute between them.
4An in-person hearing was set for November 4, 2017, with documents to be exchanged by both parties on or before September 13, 2016.
5The applicant requested three adjournments of the initial case conference hearings hearing. The first request was granted as the applicant was overseas, had lost his passport and wasn’t sure whether he would make it back in time. The second adjournment was also granted when the applicant claimed that the respondent did not satisfy the order for production of the claim adjuster’s complete file. The third adjournment was granted, as the date for the hearing conflicted with another date on a separate matter.
6] The applicant withdrew his application on November 17, 2017, before the next scheduled hearing date of November 24, 2017.
7The respondent had prepared for the in- person hearing for November 24, 2017, and now seeks to recover its costs.
ANALYSIS
8The Respondent has brought this motion for costs on the ground that the applicant should have withdrawn his application earlier. The respondent’s position is that the applicant could have withdrawn its case and could have reapplied within the two years from the date of denial. The respondent claims that the applicant has also wasted a lot of time with the adjournments of the prior proposed case conference hearings.
9The respondent’s states that the applicant also failed to satisfy the production orders on or before the due date, of September 13, 2017. On the contrary, the respondent argues that it provided all productions by the requisite due date, and also prepared its witnesses for the in- person hearing.
10The applicant’s position is that the three adjournments were reasonable and granted on that basis.
11The applicant’s position is that it withdrew its application because another treatment plan dated October 14, 2017, had been recently denied. He wanted to have both plans submitted, to have one application going ahead, instead of having two applications pending simultaneously, thereby doubling the costs of retaining experts twice.
The law
12The Tribunal’s authority to award costs comes from two sources: section 17.1 of the Statutory Powers and Procedures Act (“SPPA”) and Rule 19.1 of the Rules.
13Section 17.1(1) of the SPPA empowers the Tribunal to order a party to pay 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, vexatious or in bad faith.
14Rule 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.
15The courts have made it clear that 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. In the case of any withdrawal by an applicant, there must be sufficient evidence that the applicant has engaged in in a course of conduct that is unreasonable, frivolous, vexatious or is in bad faith. 1
16I find that there has not been put before me, sufficient evidence by the respondent to satisfy Rule 19.1 and therefore the motion for costs is dismissed.
Released: February 16, 2018
Robert Watt, Adjudicator
Footnotes
- N.P.M.T. (16-002709) v State Farm Insurance Company, 2016 CanLII 96160 (ON LAT) para 17-19