Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250
Toronto ON M7A 1N3
Tel: 1-844-242-0608
Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes
77 rue Wellesley Ouest, Boîte no 250
Toronto ON M7A 1N3
Tél. : 1-844-242-0608
Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
File: 18-000935/AABS
Case Name: A.B. v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Robert Romero, Paralegal
For the Respondent: Mark Vella, Legal Counsel
OVERVIEW
1The applicant was injured in a car accident on July 18, 2015. The applicant was denied certain benefits and filed an application for dispute resolution to the Licence Appeal Tribunal (the “Tribunal”). At the case conference the adjudicator ordered the issues in dispute to be heard by way of a written hearing.
2The timeline for filing submissions were as follows:
a. Applicant’s submissions due October 5, 2018
b. Respondent’s submissions due October 18, 2018
c. Reply submissions, if necessary, due October 29, 2018.
3After the respondent filed their submissions the applicant withdrew their application from the Tribunal on October 24, 2018. On November 9, 2018 the Tribunal issued a letter to the applicant indicating the file would be closed.
4The respondent argues that in its responding submissions for the hearing they requested costs in accordance with section 19 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”). It submitted that when the Tribunal closed its file it violated the rules of natural justice and procedural fairness by not hearing the issue of costs. The respondent filed a Request for Reconsideration on the decision to close the Tribunal’s file in accordance with section 18 of the Rules. The respondent seeks the decision be overturned and a hearing on the issue of costs.
5Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
6In accordance with sec. 3 of the Rules I can vary the Rules to ensure efficiency. That being said, if I grant the Request for Reconsideration, I will be deciding on the issue of costs because I have all the submissions from the parties and it will expedite the decision.
RESULT
7The respondent’s Request for Reconsideration is allowed and their request for costs is denied.
LEGAL TEST
8The grounds for a Request for Reconsideration are contained in section 18 of the Rules. Section 18 states a Request for Reconsideration will not be granted unless one or more of the criteria in Rule 18.2 are met. More specifically the respondent is claiming that by closing the file and failing to decide the issue of costs was a breach of procedural fairness.
ANALYSIS
Did the Tribunal’s decision violate Rules 18.2?
9The respondent claims the Tribunal’s decision violated the rules of natural justice and procedural fairness by closing its file without adjudicating the cost issue. The respondent had requested costs in connection with the proceedings and by closing the file all the issues before the Tribunal were not properly heard or decided. The respondent relies on the Reconsideration decision of 16-000474 v. Aviva1 where the Tribunal closed their file upon receiving a Notice of withdrawal before hearing the issue of costs. The Request for Reconsideration was granted. I find the decision relevant and persuasive in this matter.
10The applicant in its reconsideration submissions agrees that the respondent is entitled to a hearing on the issue of costs, but the Request for Reconsideration should be dismissed on the basis that they will be unsuccessful on the merits of the costs claim. The applicant’s submissions focus on their defense relating to the issue of costs and why costs are not warranted.
11I find the Tribunal’s decision to close the file without adjudicating the costs issue violated the rules of natural justice and procedural fairness. In accordance with Rule 19 a request for costs can be made in writing or orally at a case conference or hearing before the decision is released. I find the respondent followed those rules by requesting costs in their responding submissions to the application. When the Tribunal received the Notice of Withdrawal from the applicant, they closed its file. By closing the file the Tribunal failed to allow the request for costs to be heard.
12In accordance with Rule 18.4 I grant the Request for Reconsideration and allow the request for costs to be heard.
Is the respondent entitled to costs?
13The respondent requests costs in the amount of $150 in accordance with section 19 of the Rules. They claim the applicant acted unreasonably and in bad faith for the following reasons:
a. the applicant failed to provide a copy of the orthopaedic assessment report of Dr. Fern in advance of the applicant’s submission which amounts to trial by ambush;
b. the applicant claimed in paragraph 28 of their submissions that because the respondent did not obtain an addendum report to address Dr. Fern’s findings it implies the respondent supported the doctor’s conclusion. The respondent did not have a copy of the findings until the applicant filed its submissions on October 5, 2017 and therefore could not have obtained an addendum.
14The applicant did not file submissions on the issue of costs at the time of the written hearing. They did provide submissions on the issue in their reconsideration submissions and argue that their conduct does not meet the requirements to grant costs. The applicant relies on the decision of O.O and Aviva Insurance Company2 and M.S. and Primmum Insurance Company3 to show that awarding costs is a high burden of proof and costs should not be awarded to compensate for defending a claim or to punish the other party. I agree.
15To be entitled to costs under sec. 19 of the Rules, the respondent would have to prove the applicant acted unreasonably, frivolously, vexatiously or in bad faith. The alleged actions would also have to be during the course of the proceedings. This is a high onus to prove.
16The adjudicator ordered4 at the case conference that the parties exchange and file their evidence with their written submissions. Although it is good practice for the parties to list the evidence they are relying on for the hearing in the case conference summary to prevent delays of the hearing or incurring additional costs I do not find that the applicant violated the order by filing the report of Dr. Fern with their submissions. I also do not consider filing of the report in with their submissions a trial by ambush. The respondent had an opportunity to respond to the report through their responding submissions which were due 13 days after the applicant’s initial submissions. If there were any issues regarding procedural fairness in the applicant’s initial submissions the respondent should have filed a motion on the issue.
17The respondent also feels that costs are warranted because in their submissions the applicant alleged that an inference should be made that the respondent is agreeing with the report of Dr. Fern because they did not get an addendum. I find that asking an adjudicator to draw an inference does not amount to conduct that is frivolous, vexatious or in bad faith.
18I find the respondent has not met the high onus for an entitlement to costs.
CONCLUSION
19For the reasons noted above, I grant the respondent’s Request for Reconsideration but find that their claim for costs is denied.
Chloe Lester Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 5, 2019
Footnotes
- 16-000474 v. Aviva, 2016 CanLII 105250 (ON LAT)
- 16-000946 v Aviva Insurance Company of Canada, 2017 CanLII 12607 (ON LAT)
- 16-000546 v Primmum Insurance Company, 2017 CanLII 46355 (ON LAT)
- Case conference order dated July 23, 2018