Licence Appeal Tribunal
Tribunal File Number: 18-005692/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
[M. A. Q.]
Applicant
and
Dominion of Canada General Insurance Company (Travelers)
Respondent
MOTION DECISION
Decision made by: Maureen Helt, Vice Chair
Date of Decision: March 13, 2019
OVERVIEW
1The applicant was injured in an automobile accident on Saturday, June 14, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3A case conference took place on Friday, October 29, 2018 and an order was issued dated November 7, 2018.
MOTION
4On March 8, 2019, the respondent filed a Notice of Motion requesting that the Tribunal the following;
i. Make an order to award costs to the respondent in accordance with Rule 19 on the basis that the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith.
5The respondent seeks the legal costs incurred associated with preparing for the hearing which includes the cost of having an expert witness, attend the hearing, costs of preparing the expert witness as well as costs of preparing a joint document brief. In this regard the applicant seeks costs of $1000 plus $310. 19 for the joint document brief.
6Motion submissions were not requested from the applicant as they are not required in this case.
RESULT
7The respondent's motion is denied.
ANALYSIS
8The respondent is the moving party on this motion and bears the onus of proof to prove on a balance of probabilities that he/she is entitled to the relief sought.
9Rule 19.1 of the Tribunals Rules of Practice and Procedure provides that costs may be payable where a party believes another party in proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
10The respondent alleges that the applicant waited until two business days before the hearing before withdrawing its application and that was unreasonable.
11The respondent further submits that as the applicant was double booked for the day of the hearing which demonstrates a clear intent on the part of the applicant’s counsel not to attend for the hearing.
12I do not find that double booking demonstrates bad faith on the part of the applicant. It is very common practice for counsel to double book knowing full well that matters may settle before the hearing.
13The respondent further submits “the applicant’s last minute withdrawal suggests he was using the hearing as a stick to encourage the respondent to settle-out the claim. Such behaviour makes a mockery of the LAT’s purpose, with is the fair, efficient, and effective adjudication of accident benefits claim.”
14In considering the submissions of the respondent, while I agree that the notice of withdrawal of the applicant was filed on the eve of trial I do not find that this contravenes the Tribunal’s hearing process which is meant to be open and promote fairness to all parties.
15While I acknowledge that the respondent incurred the costs of preparing the hearing, paying for the court reporter and time spent preparing for cross-examination, this is part of the hearing process.
16As the respondent recognizes in its submissions, current case law from the Tribunal holds that a withdrawal will rarely constitute behaviour warranting costs. I do not find that the evidence presented supports a claim for costs under Rule 19.1 in this case.
17The respondent’s motion is denied.
Released: March 13, 2019
Maureen Helt
Vice Chair