RECONSIDERATION DECISION
Before: Terry Hunter, Vice-Chair
File: 17-005302/AABS
Case Name: S.W. v. Aviva General Insurance
Written Submissions By:
For the Applicant: Alexei Antonov, Counsel Alina Kaganovich, Counsel
For the Respondent: Geoffrey Keating, Counsel
INTRODUCTION
1The respondent requests reconsideration of a Decision dated May 3, 2018 which awarded the applicant $1,000.00 in costs. Costs were awarded to the applicant as a result of the respondent’s conduct during the proceedings before the Tribunal. The respondent submits that the Vice Chair’s decision to award costs was made in error and should be overturned.
2Pursuant 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.
3For the reasons that follow the respondent’s request for reconsideration is denied.
THE FACTS
4The applicant was injured in a motor vehicle accident on May 3, 2016. She applied to the respondent for an income replacement benefit pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule) for the period from May 9, 2016 until February 7, 2017 when she returned to work.
5In his overview to the decision the hearing adjudicator wrote; “At the hearing the respondent conceded that the impairments suffered by the applicant were of sufficient severity that she would meet the test for entitlement to an income replacement benefit.” He continued by finding this concession rendered the need for medical evidence regarding the extent of the applicant’s impairment unnecessary.
6The application was heard in-person February 2, 2018. After the concession by the respondent the only issue before the Vice Chair was the quantum of the income replacement benefit. The applicant testified, the doctors on standby to give evidence were advised they were not needed.
7The applicant asked for costs on the basis that the respondent’s concession at the start of the hearing that entitlement to an income replacement benefit was not an issue put her to great expense in terms of preparing for the hearing. The respondent argued it was always its position that the applicant met the test for an income replacement benefit and there was no need for medical evidence to be lead at the hearing.
8The Vice Chair found the respondent’s position disingenuous. Their actions were unreasonable and vexatious and awarded costs in the amount of $1,000.00.
9The applicant takes issue with the Vice Chair’s order and seeks reconsideration.
DECISION AND REASONS
10Rule 18 of the Rules of Practice and Procedure governs the reconsideration process. Rule 18.1 requires a request for reconsideration to include the reasons for the request and an explanation of how those criteria, set out in Rule 18.2, are met.
11The criteria for reconsideration under Rule 18.2 are as follows:
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;
(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
12This rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. 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.
13A party seeking a reconsideration 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.
14The respondent submits reconsideration is warranted because:
a. The Tribunal made three significant errors of law in its order awarding costs in favour of the applicant.
15I will now address each of these alleged errors.
(i) Error #1 – Failure to Apply Reasoning Applied in Prior Decisions – Error of Law
16The respondent alleges that the Tribunal’s ruling with respect to costs fails to consider prior decisions of the Tribunal. The respondent cites four1 decisions which they submit establish that an insured is free, at any time during a proceeding, to concede an issue or their claim entirely without cost consequences. The respondent draws a number of conclusions from the cases cited. The first conclusion is these cases illustrate the Tribunal’s jurisprudence on cost awards against insureds. The second conclusion drawn by the respondent is these cases when contrasted with the present case points to a clear and unjustifiable double standard with respect to insureds and insurers. I disagree with both conclusions.
17The respondent submits that if the reasoning is applied from the cases cited there would be no order for costs. A comparative analysis of case law on costs is the wrong approach. Rule 19.5 of the Tribunal’s Common Rules of Practice & Procedure states the Tribunal shall consider all relevant factors including the potential impact an order for costs would have on individuals accessing the Tribunal system. The respondent’s allegation of unequal treatment seems to compare unrelated factors; Aviva’s last-minute change of its position to the insured’s right to seek access to justice.
18Each decision awarding costs is different because they are fact specific. The Tribunal is not bound by precedent and that is apparent in a review of cost awards. I reject the submission that there is a discernable line of reasoning evident in awards of costs in Tribunal decisions that Adjudicator Flude failed to apply. I find no error of law on this ground.
(ii) Error #2 – Failure to Appreciate the Distinction between the Respondent’s Position throughout the Proceeding and the Respondent’s Position at the Hearing.- Error of Fact
19The respondent submits the Tribunal misunderstood its position with respect to entitlement. In paragraph 21 of the respondent’s submissions it states the position presented by the respondent at the hearing was the issue of entitlement had been conceded well before the hearing. This was the position presented at the hearing. The paragraph concludes with the following statement; “Prior to the hearing, the Respondent had held the position that entitlement was disputed.” This confusing paragraph is in contrast to paragraphs 33 to 42 of the Adjudicator’s decision. Those paragraphs contained a detailed examination of the respondent’s position on entitlement at each stage of the proceeding. The Adjudicator found from the filing of the Response to the claim for benefits to the morning of the hearing, the respondent maintained a position that the applicant’s medical entitlement was in issue. The respondent’s submission neither clarifies nor counters the Adjudicator’s finding that its conduct was disingenuous. I find no error of fact.
Error #3 – Lack of Justification for Quantum – Error of Fact and Law.
20The respondent submits the award of costs is based on the applicant’s cost of their involvement in the proceeding. The Adjudicator clearly found the trigger for an award of costs is tied to the behavior of the party against whom the award is made. In this case the respondent was found to have acted unreasonably and vexatious. The Adjudicator having made this finding discussed quantum with a consideration of proportionality. Having made a finding that the behavior of the respondent attracted costs to a discussion of how to determine quantum which can include the opposing party’s incurred expenses is not an error.
CONCLUSION
21The Adjudicator had the discretion to award costs and was in the position to assess the parties’ conduct and whether costs were warranted.
22This request for reconsideration is denied.
Terry Hunter
Vice-Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 12, 2019
Footnotes
- 16-002782/AABS v Aviva General Insurance, 2018 CanLII 39370 (ON LAT); 16-003039 v Aviva Insurance, 2017 CanLII 76929 (ON LAT); 16-000474 v Aviva Insurance Company, 2017 CanLII 81568 (ON LAT); 17-002843/AABS v Aviva General Insurance, 2018 CanLII 13174 (ON LAT).