K.G. v. Aviva Insurance Company of Canada, 2020 CanLII 72513

Citation: K.G. vs. Aviva Insurance Company of Canada, 2020 ONLAT 19-006535/AABS

Released Date: 09/02/2020

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:

K.G.

Applicant

and

Aviva Insurance Company of Canada

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Courtney Madison

Counsel for the Respondent: Mohamed R. Hashim

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on April 27, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').

2A dispute arose about the applicant’s entitlement to benefits and the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) on or about November 1, 2018. The applicant sought to dispute the respondent’s denials on an income replacement benefit (“IRB”), attendant care benefit (“ACB”) as well as four medical and rehabilitation benefits.

3A written hearing was scheduled for June 10, 2019 and the parties exchanged their written submissions with respect to the written hearing.

4On June 7, 2019 the applicant filed a Notice of Withdrawal stating that she chose to withdraw her appeal before the Tribunal and as a result, the Tribunal issued a closure letter notifying the parties that the Tribunal file will be closed.

5On June 18, 2019 the applicant filed another Tribunal application disputing the same medical and rehabilitation benefits, however the claims for an IRB and an ACB were not part of this application.

6At the case conference the respondent raised a preliminary issue that the Tribunal application filed by the applicant was an abuse of process given that the four medical and rehabilitation benefits in dispute were raised in a previous proceeding and were also withdrawn by the applicant.

7The respondent seeks to have the application dismissed and with costs payable to it.

ISSUES TO BE DECIDED

8The preliminary issue in dispute is as follows:

(i) Does this case represent an abuse of process by the applicant given that the issues raised herein were raised in a previous proceeding and withdrawn by the applicant?

(ii) If the answer to first question is “yes” then is the applicant liable to pay costs to the respondent pursuant to Rule 19.1 of the Common Rules of Practice & Procedure (the “Rules”)?

RESULT

9The applicant’s second Tribunal application is not an abuse of process and the respondent is not entitled to costs.

THE LAW

10Section 8 of the Licence Appeal Tribunal Act¹ states as follows:

If, on the application of a party to a hearing before the Tribunal with notice to the other parties, the Tribunal is satisfied that the application for the hearing is frivolous or vexatious, the Tribunal may refuse to grant the hearing or may terminate the hearing at any time and make an order of costs as it considers appropriate in the circumstances.

11Rule 3.4(a) of the Tribunal Rules sets out that the Tribunal may dismiss an appeal without a hearing if:

(a) The appeal is frivolous, vexatious, or commenced in bad faith

12Rule 19.1 of the Rules provides that a party may make a request to the Tribunal for costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

13Rule 19.5 sets out the powers of the Tribunal in deciding whether to order costs and the amount of costs. The Tribunal shall consider all relevant factors including:

(i) The seriousness of the misconduct;

(ii) Whether the conduct was in breach of a direction or order issued by the Tribunal;

(iii) Whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process;

(iv) Prejudice to other parties; and

(v) The potential impact an order for costs would have on individuals accessing the Tribunal system.

ANALYSIS

14I find that the applicant’s withdrawal of her Tribunal application before the written hearing and a subsequent re-filing of her application 11 days later is not an abuse of process for the following reasons.

15The respondent’s position is that the current application at the Tribunal is unreasonable, frivolous, vexatious and done in bad faith, because this is the applicant’s second Tribunal application and it was filed days after withdrawing from a previously scheduled hearing which was set to commence in three days. According to the respondent, this is a duplicate application and is an abuse of process.

16The respondent further submits that there was no material change in the second application and the applicant simply restarted the litigation process. The respondent takes the position that the conduct of the applicant resulted in the use of time, resources and money on the part of the respondent.

17The respondent relies upon the Tribunal case of M.O. v. Unifund Assurance Company² in support of its position that re-filing a second Tribunal application with no material change from a previous application is an abuse of process warranting costs.

18The applicant takes the position that an abuse of process can exist when a party seeks to re-litigate an issue that has already been decided against it in another forum.³ However, the applicant submits that there was no decision made by this Tribunal or in another forum on any of the issues in dispute and as a result, this is not an abuse of process.

19The applicant submits that on June 7, 2019 she emailed the respondent to confirm that the items listed in the appeal were not time-barred and as they were not, the applicant withdrew her application in order to allow the respondent an opportunity to review a chronic pain report and additional hospital records.

20The applicant further submits that as a result of the new medical information, the respondent continued to adjust the file and on December 13, 2019, requested an addendum to its prior insurer examination (“IE”) assessment.⁴

21The applicant further relies upon the Tribunal case of 16-000448 v State Farm Automobile Insurance Company,⁵ in support of her position that issues raised in a prior proceeding are not an automatic bar to a subsequent application and also relies upon the following comment by Vice-Chair Trojek in 16-000474 v Aviva Insurance Company:⁶

If the applicant did not withdraw her application and proceeded with the hearing, she would not be able to submit all the evidence she intended to rely upon. It would not have been possible for her to have a full hearing on the merits of her case. One of the primary goals of the Tribunal is to provide the access to justice. Knowing that she did not have all the evidence that she needed to present her case, I find that the applicant did not act unreasonably in withdrawing her application.

22The onus is on the respondent to prove on a balance of probabilities that the applicant acted frivolously, vexatiously or in bad faith in filing her Tribunal application and I am not persuaded by the respondent’s arguments.

23The original Tribunal application listed six issues in dispute - four medical rehabilitation benefits and an IRB and ACB. The applicant submits she withdrew the application as a result of a chronic pain report and additional hospital records that were obtained and sent to the respondent.

24The respondent takes the position that the chronic pain report was from 2017 and was not the reason for the withdrawal and submits that the re-filed application was not materially different from the original one that was withdrawn 11 days earlier.

25The case the respondent relies upon is M.O v. Unifund,⁷ wherein the adjudicator in that case found an applicant who withdrew an application and subsequently re-filed it hours later with no material change in circumstance was behaviour that was frivolous, vexatious and unreasonable and that this conduct amounted to an abuse of process. However, I do not find the M.O. case to be supportive of the respondent’s position. In M.O. the applicant withdrew her application as a result of a s. 44 non-attendance at an IE, and then hours later another application was re-filed with the same issue in dispute. The applicant did not attend a s. 44 IE assessment and pursuant to s. 55 of the Schedule, the Tribunal held that she should have known that her non-attendance would bar her from making an application to the Tribunal. This was the same reason she withdrew her first application and knowing that, the Tribunal found that the applicant should not have filed her second application.

26Those are not the facts in the present case. In this case the applicant’s new application was filed 11 days after and it did not include the IRB or the ACB claims and it was therefore not an identical application as was the case in M.O.

27The respondent does not provide any evidence in support of its position to have the applicant’s Tribunal application dismissed in accordance with Rule 3.4 without a hearing for an abuse of process, especially when the issues in dispute have not been adjudicated on their merits. To do so under these circumstances, in my view, would be an extremely harsh result and cast a chill on an applicant’s access to justice to dispute denied medical benefits. An applicant is entitled to withdraw an appeal application at any time and does not need the consent of the respondent to do so.

28I agree with Vice-Chair Trojek in 16-000474 v. Aviva Insurance Company where she was persuaded and guided by the following comment:

A withdrawal of an application alone will rarely, if ever, be a sufficient basis on which the Tribunal will make a cost order. Access to justice is central to the mandate of the [Tribunal]. As such, a cost award shall not be granted merely because a withdrawal has caused another party inconvenience. In the case of withdrawal, there must be sufficient evidence the applicant has engaged in a course of conduct that is unreasonable, frivolous, vexatious or in bad faith.⁸

29I agree with above statement and adopt it for the purposes of this hearing. Other than the withdrawal and the re-filing of the application 11 days later, the respondent has not pointed to a course of conduct on the part of the applicant that can be considered unreasonable, frivolous, vexatious or in bad faith, nor has the respondent directed me to any facts or evidence that is similar to the facts in the M.O. case where costs were awarded.

30As a result of the above, I find that the respondent is not entitled to costs as the applicant did not commit an abuse of process.

31Applicants may initiate applications where they believe they are entitled to benefits. Respondents have the right to raise appropriate defences in response to those applications. The Tribunal should not deter applicants from filing applications that may have merit. The respondent’s interpretation of what is frivolous, vexatious or in bad faith in this matter would discourage applicants from filing valid applications, and have a negative impact on access to justice.

ORDER

32For the reasons outlined above, I find that the applicant’s Tribunal appeal application is not an abuse of process and the respondent has not provided sufficient evidence to satisfy Rule 19.1. As a result, the respondent’s claim for costs is dismissed.

Released: September 2, 2020

____________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1S.O. 1999, c. 12, Sched. G.
2. 22017 CanLII 35317 (ON LAT).
3. 316-000448 v State Farm Mutual Automobile Insurance Company, 2016 CanLII 106919 (ON LAT) at para. 15.
4. 4Written Submissions of the Applicant at Tab D. Notice letter dated December 13, 2019.
5. 52016 CanLII 106919 (ON LAT).
6. 62017 CanLII 81568 (ON LAT).
7. 7Supra Note 2.
8. 82017 CanLII 81568 (ON LAT) at para. 25.