Larissa Bablak v. Gore Mutual Insurance Company, 2022 CanLII 46858

ORDER

Tribunal File Number: 20-002022/AABS

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:

Larissa Bablak

Applicant

and

Gore Mutual Insurance Company

Respondent

ORDER

ADJUDICATOR:

Robert Watt, Adjudicator

APPEARANCES:

For the Applicant: Imtiaz Hosein, Counsel

For the Respondent: Arthur Camporese, Counsel

ounsel

Held by Videoconference:

June 8, 2021

BACKGROUND

1This proceeding, under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), arises out of a motor vehicle accident on September 28, 2017. The parties participated in a case conference on July 7, 2020. A five day in-person hearing was scheduled for June 7-11, 2021.

2The applicant advised the Tribunal by e-mail on June 7, 2021 at 9:08 a.m. that the applicant was withdrawing her application. No formal Notice of Withdrawal was filed by the applicant with the Tribunal. The respondent was copied on the e-mail. No reasons were given for the late withdrawal of the application.

3The respondent was prepared to proceed with the five-day hearing and had its witnesses prepared and ready to testify.

4As a result, the respondent requested the opportunity to make submissions on costs. I indicated to both counsel that I would entertain written submissions on the issue of costs. The respondent filed written submissions, but the applicant did not file any written submissions.

5The respondent’s position is that it incurred significant costs and disbursements, including court reporter fees, witness fees, preparation fees and counsel’s time in preparing for and attending at the commencement of the hearing.

6The respondent incurred disbursements on the following: preparation of Dr. Max Wheeler (file review and consultation: $750.00); hearing preparation of Dr. Todd Bentley: $378.55; and court reporter fees: $409.06.

ANALYSIS

7Rule 19.2 of the Tribunal’s Common Rules of Practice & Procedure allows a request for costs to be made in writing or orally at a case conference or hearing at any time before the decision or order is released.

8Rule 19.1 states 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.

9Rule 19.5 requires the Tribunal, in deciding whether costs should be awarded and the amount of costs to be awarded, to consider all relevant factors including: the seriousness of the misconduct; whether the conduct was a breach of a direction or order issued by the Tribunal; whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair and efficient and effective process; prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.

10Rule 19.6 restricts the amount of costs to a maximum of $1,000.00 for each full day of attendance.

11This Tribunal has jurisdiction to hear an issue of costs after withdrawal, where the request for costs was made before an application was withdrawn and while the proceeding was still before the Tribunal.¹

12The applicant did not file a formal Notice of Withdrawal before the first day of the hearing. Therefore, I find the applicant’s behaviour interfered with the Tribunal’s ability to carry out a fair and efficient and effective process.

13Further, I find that the applicant acted unreasonably in waiting for the hearing to begin before deciding that her application was to be withdrawn.

14I find that the respondent was also prejudiced by the applicant’s late notice of withdrawal, as the respondent proceeded to prepare for the hearing not knowing of the late withdrawal. The respondent spent counsel time and preparation time that could have been avoided if the applicant had withdrawn the application earlier.

15The applicant filed no written reasons, so this Tribunal cannot assess any potential impact that an order for costs would have on the applicant.

16The applicant’s withdrawal of the application was not a result of any settlement. The maximum costs allowed do not cover counsel preparation time nor all of the disbursements incurred by the respondent.

17The applicant acted unreasonably in the process, which caused prejudice to the respondent. I order costs of $1,000.00 against the applicant, the maximum amount under the Common Rules.

ORDER

18I order that the applicant pay to the respondent the sum of $1,000.00 for costs.

Footnotes

1. 1F.K.T. and Aviva Insurance Company, 2017 CanLII 81649 (ON LAT)