[RT] v. Coseco Insurance Company, 2020 CanLII 34424

Tribunal File No.: 18-004783/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c.I.8, in relation to statutory accident benefits

Between:

[RT]

Applicant

and

Coseco Insurance Company

Respondent

DECISION

PANEL:

Nidhi Punyarthi, Adjudicator

APPEARANCES:

For the Applicant:

Imtiaz Hosein, Counsel

For the Respondent:

Shirlene Apiou, Counsel

HEARD:

In Person on: December 11, 2019

OVERVIEW

1On November 24, 2015, the applicant was involved in a car accident. He claimed certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010 (the “Schedule”). The respondent denied the applicant’s claim for benefits, and he applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2On June 1, 2018, the applicant filed his application with the Tribunal. Ultimately, a hearing had been scheduled to proceed on December 11, 2019 for a determination of the issues in dispute.

3On December 10, 2019, the applicant filed a motion to withdraw some of the issues listed for hearing on a without-prejudice basis.

4The respondent submitted that the issues not identified in the motion for withdrawal were still in dispute. The applicant disagreed. The applicant submitted that the other issues were determined in a previous preliminary issue decision in the application that was also upheld on reconsideration.

5The Tribunal called the hearing as scheduled.

ISSUES IN DISPUTE

6According to the parties’ submissions to the Tribunal on December 11, 2019, the issues in dispute are as follows:

i. Can the applicant withdraw issues without prejudice?

ii. Are attendant care benefits an issue in dispute?

iii. Is either party entitled to costs?

RESULT

7I find that:

i. The applicant can withdraw issues without prejudice.

ii. The attendant care benefits are not an issue in dispute.

iii. Neither party is entitled to costs.

ANALYSIS

(i) Withdrawal of Issues

8Based on my reading of the Tribunal’s Common Rules of Practice and Procedure, Effective October 2, 2017 (“Rules”), as well as the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), I find that the applicant is permitted to withdraw issues without prejudice.

9The Tribunal’s Rules do not specifically address the withdrawal of some or all the issues.

10The Tribunal has a form called a Notice of Withdrawal, which allows an applicant to withdraw an appeal in its entirety, without segregating the issues in dispute.

11The Notice of Withdrawal provides that the Tribunal will close its file upon service and filing of that form. By necessary extension, if a Notice of Withdrawal has not been served and filed, then the hearing on the issues in dispute will proceed as scheduled. Of course, the parties may advise the Tribunal prior to or at the hearing that some issues have been settled while others remain in dispute and require adjudication.

12Pursuant to s.2 of the SPPA, the Tribunal is to liberally construe its rules to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. Rule 3.1 of the Rules also states that the Rules are to be liberally interpreted to facilitate fairness, efficiency and consistency.

13After reviewing the evidence and the submissions, I am not persuaded that there is a basis for imposing a generalized “with prejudice” withdrawal of issues on the applicant in this case. If an issue is brought back, the applicant has the right to have that issue considered and decided on the merits and in accordance with the applicable law. If an issue has already been decided, the Tribunal can say so in its decision.

14Imposing a “with prejudice” withdrawal would also have the unintended effect of creating access to justice barriers for vulnerable injured persons seeking adjudication on accident benefits. This conclusion is grounded in the principles of justice and efficiency that the Tribunal is directed to follow under the SPPA and the Rules.

15For these reasons, the applicant is permitted to withdraw issues without prejudice.

(ii) Attendant Care Benefits Not An Issue

16At the hearing, the parties disagreed on whether attendant care benefits were an issue in dispute. Given the parties’ disparate submissions, and out of an abundance of caution, the Tribunal asked the parties to provide their submissions on their positions if attendant care benefits indeed remained in dispute. After reviewing the parties’ submissions and the Tribunal’s file, which includes a decision by Adjudicator Ferguson of June 24, 2019, I am satisfied that attendant care benefits are not an issue in dispute before me for the following reasons.

a. Adjudicator Ferguson’s order decided the issue

17On June 24, 2019, Adjudicator Ferguson decided the issue of attendant care benefits as part of a decision that barred the entire appeal from proceeding. On reconsideration on October 1, 2019, he confirmed this decision.

18On October 9, 2019, a case conference order by Adjudicator Lester listed the attendant care benefits as an issue in dispute. I accept that this may have caused some confusion.

19On December 10, 2019, counsel for the applicant e-mailed counsel for the respondent to state that attendant care benefits were not in dispute. At the hearing attendance on December 11, 2019, counsel for the applicant maintained this position.

20The applicant submitted that he is seeking judicial review of Adjudicator Ferguson’s decision. The Tribunal will await further direction in this regard.

b. The parties’ submissions on whether attendant care benefits are a live issue

21At the hearing on December 11, 2019, the applicant submitted that attendant care benefits were not a live issue for the Tribunal, as Adjudicator Ferguson had already decided the issue. He pointed to his correspondence to the insurer on December 10, 2019. Consistent with his position, the applicant did not file written submissions on the attendant care benefit issue.

22The respondent submitted that the applicant had taken a completely different position at the case conference in October 2019, which is why Adjudicator Lester had listed the issue in dispute. The respondent submitted that it will make submissions on attendant care following the case conference order of Adjudicator Lester. Following the hearing, the respondent filed written submissions on the issue of the attendant care benefit.

c. Conclusion on whether attendant care benefits are a live issue

23While the case conference order of Adjudicator Lester listed attendant care as an issue in dispute, the history of the application reveals that the issue was previously decided.

24As it currently stands, the reconsideration decision of Adjudicator Ferguson has not been overturned. Adjudicator Lester’s case conference order does not overturn that decision.

25Given the reconsideration result by Adjudicator Ferguson, the Tribunal cannot re-hear this issue at this stage. Any confusion caused by the subsequent case conference order was removed by the applicant’s counsel in the e-mail dated December 10, 2019 and submissions on December 11, 2019.

26In this context, it is incorrect for the Tribunal to decide the issue of attendant care benefits.

27The respondent should not have filed written submissions on an issue that had been decided, and especially after the applicant clarified to the respondent that the issue will not proceed notwithstanding the case conference order.

28Given the above, I agree with the applicant’s position that attendant care benefits are not an issue to be decided by the Tribunal at this stage. Therefore, I have not reviewed the respondent’s written submissions on attendant care benefits, and I do not make an order as to attendant care benefits at this stage.

(iii) Costs

29After consideration of the Rules, the law on costs that applies to the Tribunal, and the submissions made both orally and in writing, I find that neither party is entitled to costs.

30Rule 19.1 of the Rules provides that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.

31The phrase “in a proceeding” within Rule 19.1 is particularly important. Rule 2.17 defines a “proceeding” as “the entire Tribunal process from the start of an appeal to the time a matter is finally resolved.”¹

32Also, section 17.1(1) of the SPPA provides that a tribunal may order payment of “costs in a proceeding”.

33It is also instructive to look at how costs under the Rules are quantified. Under Rule 19.6, a maximum of $1000 can be ordered for a full day of attendance at a motion, case conference or hearing.

34What does it mean to award costs in a proceeding or in relation to a step in a proceeding? A useful summary of the evolution of the law on costs was provided by Justice Feldman of the Ontario Court of Appeal in 1465778 Ontario Inc. v. 112077 Ontario Ltd., 2006 CanLII 35819 (“146”), at paras. 25-28.

35Tribunal proceedings are not court proceedings. Nonetheless, the principles that apply to costs in court proceedings also inform the rules and statutory framework relating to costs that apply to this Tribunal.

36In 146, the Court of Appeal found that a party represented by pro bono counsel should be entitled to costs. The Court also discussed the purpose behind costs. The decision excerpted the Courts of Justice Act, which applies to costs in the courts, also refers to “costs of and incidental to a proceeding or a step in the proceeding,” and notes that they are in the “discretion” of the court.

37As Justice Feldman wrote in 146, costs orders moved beyond an award to the successful party in a proceeding. Costs came to serve purposes such as influencing the way parties conduct themselves², preventing abuse of process³, discouraging unnecessary steps that unduly prolong the litigation⁴, and furthering the efficient and orderly administration of justice⁵.

38Costs became a tool to ensure that litigation is conducted in a just and efficient manner. Relevant questions include asking whether the conduct of a party caused an unnecessary step in the litigation or the proceeding.

39These same principles inform the Rules as they pertain to costs at the Tribunal. Was the conduct of a party unreasonable, frivolous, vexatious, or in bad faith such as to warrant an award of costs? Rule 19.5 provides that before making an order as to costs, the Tribunal shall consider all relevant factors, including the seriousness of the misconduct; whether the conduct was in breach of the Tribunal’s order or direction; whether the behaviour interfered with the ability to carry out a fair, efficient and effective process; and the potential impact that a costs order would have on individuals accessing the Tribunal system.⁶

40A distinction must be drawn between conduct that engenders an unnecessary step in the proceeding and conduct that would have taken place irrespective of the proceeding. In the parties’ interactions in this case, we have the proceeding, and we also have conduct that took place over the course of the adjustment of the claim file. In order for the conduct in the latter category to be considered for a costs award, it has to be connected to a specific step in the actual proceeding and meet other conditions for costs set out in the Rules. If, for example, the conduct complained of is an unreasonably delayed or withheld denial of a benefit, it can be addressed by this Tribunal under other statutory frameworks, separate from costs.

41Keeping these considerations in mind, I turn to the parties’ submissions. I note that both parties made detailed oral and written submissions on the adverse party’s conduct in their requests for costs.

42Taking an example from the applicant’s submissions, the applicant submitted that the respondent’s failure to address his queries with respect to the notices on insurer examinations constituted conduct that warranted a costs sanction. Similarly, taking an example from the respondent’s submissions, there were a number of positions and motions taken by the applicant that were unnecessary in the respondent’s view and worthy of a costs sanction.

43Neither party pointed to a specific instance of deliberately breaching an order of this Tribunal and leaving it uncorrected. Both parties allege that the adverse party made misrepresentations to the Tribunal. They disagree with each other’s allegations in that regard. The question for me to ask, however, is not whether there was a misrepresentation to the Tribunal, but whether the misrepresentation was such that it invited the sanction of Rule 19. Was the party affected by the alleged misrepresentation unable to respond to it and or make a case to the Tribunal that a misrepresentation was taking place? Was the Tribunal unable to effect a fair and just process as a result of the alleged misrepresentation?

44I have carefully reviewed the evidence and submissions with respect to each instance of conduct cited in the parties’ submissions against each other. I am unable to find that either party engaged in bad faith conduct, or conduct that caused an unnecessary step in the proceeding.

45Instead, the record shows that both parties’ counsel took the steps they deemed necessary to represent their clients’ positions and interests. There is a good faith basis behind each party’s conduct that the adverse party accuses them of, namely, the intention to ensure that the interest of the party is protected in the litigation.

46In the example taken above from the applicant’s submissions, the respondent was of the view that the applicant was incorrect on the law on the notices of insurer examinations and proceeded to a motion for a determination. In the example taken from the respondent’s submissions, the applicant was of the view that the positions or motions were necessary to advance and protect his interests.

47Finally, with respect to each instance of alleged misrepresentation in the submissions, the party affected by the alleged misrepresentation was given the opportunity to respond to what it believed was a misrepresentation, and to make a case as to what the Tribunal should conclude on a balance of probabilities. None of the alleged misrepresentations by either party interfered with the Tribunal’s ability to conduct a fair process.

48Therefore, I am unable to fault either party for a decision made with respect to any step in the proceedings before the Tribunal: whether that party was bringing a motion, or responding to it, or raising issues for the Tribunal’s consideration through scheduled attendances, correspondence, and submissions.

49For these reasons, I do not view any of the parties’ conduct referred to in the submissions as unreasonable, frivolous, vexatious, or in bad faith. Rather, counsel for both parties were actively advocating for their clients.

50The purpose of a costs order is not to discourage zealous advocacy. A costs order against parties whose counsel were strong in maintaining, presenting or defending their clients’ positions would have an adverse, chilling effect that is inconsistent with the mandate of the Tribunal to receive evidence on the merits and make decisions on disputes that fall within its jurisdiction. Making a costs order with respect to the steps any of the parties took in this application would have a negative impact on future individuals accessing the Tribunal for a just, fair, and efficient determination.

51Applying the factors set out in Rule 19.5, I do not view either party’s conduct in these Tribunal proceedings as conduct that would attract an order of costs.

52I do not fault applicant’s counsel for the late attendance on December 11, 2019, as that counsel was under a misapprehension that an attendance was not necessary. Upon receiving a direction from the Tribunal to attend the hearing, applicant’s counsel attended the hearing and then answered the Tribunal’s questions.

53To summarize, I did not find evidence of conduct on the part of either party that was so unreasonable, frivolous, vexatious or in bad faith that it incited an unnecessary step or an unnecessary participation in all or part of these proceedings.

54As a result, neither party is entitled to costs.

CONCLUSION

55In conclusion:

i. The applicant can withdraw issues without prejudice.

ii. The applicant’s claim for attendant care benefits is not being determined by the Tribunal at this time as it has already been decided.

iii. Neither the applicant nor the respondent is entitled to costs of the proceedings.

Footnotes

1. 1The applicant cited Blank v. Canada, 2006 SCC 39. This case does not address what a “proceeding” means for the purposes of making an order as to costs.
2. 2146, at para. 26.
3. 3Ibid.
4. 4Ibid.
5. 5146, at para. 27.
6. 6The applicant cited R. v. Pham, 2013 SCC 15. This case does not discuss the principles behind making an order as to costs. The applicant also cited Cartaway Resources Corp. (Re), 2004 SCC 26, which I do not find to be helpful or relevant as it deals with the process and penalties made by a different statutory body from a different jurisdiction, namely the British Columbia Securities Commission.