Tribunal File Number: 17-005271/AABS
Case Name: 17-005271 v Aviva 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:
M. B. W.
Applicant
and
Aviva Insurance
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Nader Fathi, Paralegal
For the Respondent: Michael Vrantsidis, Counsel
HEARD: In writing on April 27, 2018
OVERVIEW
1The applicant was injured in an automobile accident on June 14, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10 - Statutory Accident Benefits Schedule (the "Schedule"). The applicant and the respondent had a dispute regarding the benefits that the applicant may be entitled to and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2The parties participated in a case conference. The outcome of the case conference was that, on consent, the issues in dispute were ordered to a hearing in-person on March 28 & 29, 2018. Following the case conference, the respondent reinstated the applicant's income replacement benefits (IRBs), resolving one of the issues in dispute for the March 2018 hearing. The parties were unable to resolve the remaining issues in dispute.
3On the morning of the commencement of the hearing, the applicant faxed the Tribunal a Notice of Withdrawal.
4Following receipt of the Notice of Withdrawal, the respondent requested that the costs of this proceeding be addressed. I allowed the request and ordered the parties to provide written submissions on the issues outlined below.
ISSUES
5The issues in dispute for this hearing are whether the Tribunal has jurisdiction to hear the motion for costs and whether the respondent is entitled to the costs of this proceeding, in the amount of $3,000.00.
RESULT
6For the reasons set out below, I find that:
(1) The Tribunal has jurisdiction to hear the motion for costs.
(2) The respondent is not entitled to the costs of this proceeding.
JURISDICTION TO HEAR SUBMISSIONS FOR COSTS
7The respondent's position is costs are a live issue before the Tribunal because the matter had not fully resolved. The respondent submits it intended to pursue costs from the applicant at the hearing and conveyed its intention to the applicant by way of notice of motion dated March 22, 2018 and previously by letter dated March 8, 2018.The respondent submits it intended to argue costs at the hearing and that the intention was relayed to the applicant prior to the hearing, effectively adding entitlement to costs to the list of issues in dispute. In other words, the respondent submits that the applicant cannot withdraw the respondent's request for costs.
8The applicant was provided an opportunity to make submissions on the Tribunal's jurisdiction to hear the motion on costs and declined to address the issue.
9After review of the evidence and submissions, I find that the respondent clearly expressed an intention to seek costs of the proceeding prior to the applicant's withdrawal of the application. At the latest, the respondent's intention crystalized when it filed the Notice of Motion dated March 22, 2018 with the Tribunal, which included notice that a request for costs would be heard at the hearing. The issue of costs was not resolved at the time the applicant filed a Notice of Withdrawal.
10The Tribunal has jurisdiction to hear the respondent's request for the costs of the proceeding. I agree with the reasoning in F.K.T. and Aviva Insurance Company,1 where in the event that there is an unresolved claim for costs, the Tribunal has jurisdiction to hear the motion despite receipt of a Notice of Withdrawal.
THE MERITS OF THE REQUEST FOR COSTS
11Pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
12The respondent claims entitlement to a cost award totalling $3,000.00 based on $1,000.00 for attendance at the case conference and $2,000.00 for the two-day hearing. The respondent submits several reasons in support of the claim, most of which relate to the applicant's conduct during the LAT proceeding. During the case conference, the respondent submits, the applicant refused to identify an issue as resolved when the respondent agreed to pay the benefit. Further, the respondent submits that following the case conference the applicant produced documents later than ordered or not at all in some cases, disclosed an unfavourable medical document in an untimely manner and later than ordered, and did not confirm the applicant's entitlement to any supplemental health insurance plans.
13The respondent provided other examples of behaviour which it feels warrants a cost award. These include: withdrawing within 30 minutes of a scheduled hearing, withdrawing the application without being provided new evidence or arguments which would encourage a withdrawal, and advancing a claim for medical benefits which were not incurred.
14The respondent submits that the applicant's lack of compliance with the Adjudicator's order and lack of evidence warrants a cost award because it is analogous with the decision in B.F. v Wawanesa2. In B.F. v. Wawanesa, the respondent was ordered to pay costs to the applicant because the respondent failed to produce documents as ordered at the case conference.
15The applicant submits the application was made with bona fide reasons to dispute the respondent's denials and there was a legal basis to the application. The applicant claims to have participated in the case conference with hopes of achieving a fair and efficient resolution. The applicant states there was no intention to push the respondent to make a last minute settlement offer.
16For the following reasons, I find that the respondent is not entitled to costs associated with this proceeding.
17First, the decision in B.F. V. Wawanesa was reconsidered by the Tribunal and the cost award was rescinded by the Executive Chair. Although the reasoning for ordering costs is compelling, it is distinguishable from this matter because it was based on the respondent's conduct and not the applicant's. The respondent's failure to produce evidence impacts the applicant's ability to rebut the respondent's evidence and prepare for a hearing. Whereas the applicant has the onus to prove entitlement to the disputed benefits and the consequence of an applicant's failure to produce evidence in support of entitlement to a benefit is that the applicant will be less likely to be successful at a hearing. The applicant's failure to confirm any entitlement to supplemental health insurance plans, when there is evidence indicating so, has no impact on this matter because the applicant did not proceed with the hearing. I note that this failure to provide information could be problematic and warrant a cost award if the matter proceeded to a hearing and the adjudicator was unable to determine an IRB quantum as a result of the lack of disclosure.
18Second, the applicant's conduct during the proceeding may be correctly characterized by the respondent as lacking professionalism but it does not meet the high standards of conduct that is unreasonable, frivolous, vexatious, or bad faith. Withdrawing an application that lacks evidence in support of it, even if done shortly before a hearing, is more reasonable than proceeding with the application. I find the applicant's behaviour did not impact the Tribunal's ability to carry out a fair, efficient and effective process.
19Lastly, the respondent suffered no prejudice as a result of the applicant's conduct. The respondent was provided a procedurally fair process, was able to effectively defend the claim, achieved a favourable result, and did not have to endure a hearing.
CONCLUSION
20The Tribunal has jurisdiction to hear submissions on costs after receipt of a Notice of Withdrawal when there is an unresolved claim for costs at the time.
21The applicant's conduct during the proceeding does not merit a cost award in favour of the respondent.
22The motion for costs in the amount of $3,000.00 is dismissed.
Released: June 27, 2018
___________________________
Brian Norris, Adjudicator
Footnotes
- 16-004565 v Aviva Insurance Company, 2017 CanLII 81649 (ON LAT)
- 16-000433 v Wawanesa Mutual Insurance Company, 2017 CanLII 19201 (ON LAT)