Safety, Licensing Appeals and Standards Tribunals Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Jonathan Batty, Associate Chair Date: April 24, 2018 File: 16-002782/AABS Case Name: P.R. v. Aviva Canada Insurance

Written Submissions By: For the Applicant: Anna Szczurko For the Respondent: Monica Pathak

Overview

[1]. In this request for reconsideration, Aviva Canada Insurance (“Aviva”) argues that the Licence Appeal Tribunal (the “Tribunal”) erred in denying its request for costs. Aviva submits that, by failing to address “serious evidentiary issues” throughout the proceeding, P.R. engaged in frivolous and vexatious conduct that should attract a cost award.

[2]. Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide this reconsideration request.

[3]. For the reasons below, I deny Aviva’s request.

The Facts

The parties’ dispute

[4]. On August 31, 2015, P.R. was injured in an automobile accident. As a result, he applied to Aviva for certain benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). Aviva paid P.R. some income replacement benefits, as well as some benefits for physiotherapy, massage, and acupuncture within Minor Injury Guideline (“MIG”).

[5]. The parties’ dispute arises from Aviva’s refusal to treat P.R. outside of the MIG. That includes Aviva’s refusal to pay for a Treatment and Assessment Plan, dated November 23, 2015, recommending that P.R. receive an activities of normal living assessment totalling $1,546.63. In response to Aviva’s position, P.R. applied to the Tribunal.

[6]. The application took the usual course. After requesting and receiving Aviva’s response to the application, the Tribunal scheduled a case conference to allow the parties to discuss, among other things, settlement and hearing procedure. In advance of the case conference, both parties submitted their case conference summaries and an extensive variety of supporting evidence.

[7]. The case conference did not resolve the issues in dispute. Thus, the Tribunal scheduled a hearing. P.R.’s counsel asked that the matter be scheduled for an in-person hearing so that he could cross-examine Dr. Levine, who examined P.R. at Aviva’s request. The Tribunal therefore ordered a hybrid hearing for February 15, 2017 from 9 a.m. – 5 p.m. It also ordered the parties to produce certain records and reports in advance of the hearing.

P.R.’s withdrawal

[8]. On the evening of February 14, 2017, P.R.’s counsel advised the Tribunal by e-mail that P.R. was withdrawing his application. The Tribunal received P.R.’s formal Notice of Withdrawal the following morning at 8:54 a.m. As a result, the in-person hearing did not occur.

Aviva’s request for costs

[9]. Following P.R.’s withdrawal, Aviva made an oral request for costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”). The Tribunal ordered a motion for costs to be heard in writing on May 4, 2017 and, to that end, requested submissions from both parties.

[10]. Aviva argued that P.R.’s application was unreasonable, meritless, and frivolous. It asked that it be reimbursed $4,689.68 for the costs it incurred related to arranging Dr. Levine’s attendance at the hearing, as well as for certain travel costs that Aviva’s representative incurred in order to attend the hearing.

[11]. More specifically, Aviva based its argument on two main points.

[12]. First, Aviva argued that P.R.’s application lacked an evidentiary foundation. In particular, Aviva claimed that P.R. did not provide any medical evidence to support his claim that he sustained a concussion or that he suffers from anxiety while driving. Aviva also argued that P.R. grossly misrepresented Dr. Levine’s insurer’s examination report to support his claim that he suffered a concussion.

[13]. Second, Aviva argued that P.R.’s conduct throughout the proceeding evidenced bad faith and an abuse of process. These included the fact that P.R. refused to pay for the production of certain medical records, that P.R. requested a two-day extension for his submissions the day they were due, and that P.R. withdrew his application on the evening before the hearing.

The Tribunal denies costs

[14]. The Tribunal disagreed. In its decision dated September 26, 2017, the Tribunal found that P.R.’s course of conduct was “nowhere near the threshold of unreasonable, frivolous, vexatious or in bad faith.” The Tribunal held that an insurer is not entitled to costs simply because an applicant is unable to prove his or her claim. Also, citing Tribunal jurisprudence, the Tribunal reiterated that cost awards under Rule 19 are not designed to compensate parties for suffering an inconvenience or for the cost of their involvement in a proceeding. For those reasons, the Tribunal denied Aviva’s motion.

[15]. Aviva now asks that I reconsider the Tribunal’s decision.

Discussion and Reasons

Rule 18: The Reconsideration Rule

[16]. Under Rule 18 of the Rules of Practice and Procedure, one or more of the following four grounds needs to be established:

1. the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

2. the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

3. the Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or,

4. there is new evidence that could not have reasonably been obtained earlier and would have affected the result.

[17]. The rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. If faced by such circumstances, the reconsideration process serves a curative role. In respect of final decisions or orders, it affords an opportunity for the Tribunal to correct a final decision made in error. In respect of interlocutory decisions or orders, it gives the Tribunal the necessary tools to get a proceeding back on track for a just and timely resolution.

[18]. A party seeking a reconsideration, and indeed the Tribunal itself, has a high onus to meet to engage this remedy. Minor or inconsequential procedural or substantive mistakes do not qualify for reconsideration. It is only warranted in cases where an adjudicator has either made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

[19]. A high onus makes sense because, once it has been met, the Executive Chair or her delegate has broad remedial powers to order a matter re-heard, or to cancel, confirm, or vary an order or decision.

Application of Rule 18 to these Proceedings

[20]. Aviva claims that the Tribunal made a significant error of law by failing to state and apply the definitions of frivolous and vexatious to the “serious evidentiary issues” raised in Aviva’s submissions: see para 12. Here, Aviva highlights the definitions of those words outlined in a previous reconsideration decision, 16-000066 v Waterloo Regional Municipalities Insurance, 2017 CanLII 35320. In that decision, the Executive Chair held as follows:

When the party bringing the proceeding is 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".

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.

[21]. While Aviva is correct that the Tribunal did not explicitly apply the definitions of frivolous and vexatious in its decision, I disagree that P.R.’s actions amount to such conduct and therefore do not reach a different conclusion than the Tribunal.

[22]. Applying the definitions above, P.R.’s application was not frivolous or insufficient on its face. In support of his application, P.R. filed some 650 pages of evidence. This included the following:

• three Disability Certificates completed by Danny Hijazi, a physical therapist at CBI Health Group, two of which listed “concussion” and “WAD 2” as P.R.’s injuries;
• an Activities of Normal Living: Participation Overview report by Registered Clinical Social Worker Jay Bierbrier, dated February 11, 2016. The report indicates that, as a result of the accident, P.R. experiences “anxiety with driving” and concludes that P.R. “has suffered a significant interruption in his overall quality of life and daily life roles;” and
• records indicating that he was being treated for psychological issues.

[23]. Based on this evidence, P.R. put forth some rational foundation to advance his position that the accident left him with concussion and anxiety, injuries that should remove him from the MIG.

[24]. Nor can P.R.’s conduct be characterized as vexatious. Again, the evidence he filed makes clear that P.R. was not acting without reasonable or probable cause. Moreover, there is no evidence to suggest that P.R. brought this application simply to annoy or harass Aviva.

[25]. P.R.’s application may have been weak. However, any conflicting evidence that Aviva filed before the hearing should not, at this stage, determine the parties’ dispute. Pursuant to s. 280 of the Insurance Act, R.S.O. 1990, c. I.8., P.R. had a right to dispute Aviva’s denial of benefits, and, had the matter proceeded, the Tribunal would have been required to assess the parties’ evidence and resolve their dispute in accordance with the Schedule. In essence, Aviva asks me to nonetheless adjudicate the parties’ dispute in order to see that P.R.’s application was without substance. That would be a mistake. At this point, I need only look at P.R.’s conduct and the evidence he filed to date to determine, as did the Tribunal, that P.R.’s conduct does not meet the threshold for costs under Rule 19.

Conclusion

[26]. This request for reconsideration is denied.

Jonathan Batty Associate Chair Safety, Licensing Appeals and Standards Tribunals Ontario Released: April 24, 2018