Yuan Chun Cai v. Motor Vehicle Accident Claims Fund (MVACF), 2023 CanLII 42636

Licence Appeal Tribunal File Number: 21-003319/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:

Yuan Chun Cai

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Daniel Fenwick, Counsel

HEARD: By way of written submissions

OVERVIEW

1Yuan Chun Cai (“the Applicant”) was involved in an automobile accident on March 25, 2017 and sought benefits from the Motor Vehicle Accident Claims Fund (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Applicant was denied entitlement to a multidisciplinary catastrophic impairment assessment plan (“the CAT assessment plan”) by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The matter proceeded to a written hearing. The Applicant filed initial submissions, seeking entitlement to the CAT assessment plan, interest, and an award pursuant to section 10 of Ontario Regulation 664.

3The Respondent filed responding submissions refuting the Applicant’s claim and requested costs.

4The Applicant never replied to the Respondent’s submissions and, instead, submitted a notice of withdrawal to the Tribunal.

5In response to the notice of withdrawal, the Respondent emailed the Applicant and the Tribunal, advised that it expected the hearing to still be completed and that the hearing included a request for costs. I infer from the email that it seeks a determination on the issue of entitlement to costs.

6A hearing on the Applicant’s entitlement to the CAT assessment plan, interest, and an award is unnecessary in light of his submission of a completed notice of withdrawal. However, I agree with the Respondent that the issue of entitlement to costs remains a live issue for the hearing.

ISSUE

7The sole issue to be decided at this hearing is whether the Respondent is entitled to costs because the Applicant acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding.

RESULT

8I find that the Respondent is not entitled to costs.

Analysis

9Pursuant to Rule 19.1 of the Common Rules of Practice and Procedure, October 2, 2017 (“the Rules”), costs may be requested where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.2 of the Rules permits a party to request costs in writing or orally at any time before a decision (or order) is released. Rule 19.3 requires that submissions on costs include the amount being requested. Rule 19.4 indicates that cost requests shall set out the reasons for the request for costs and the particulars of the party’s conduct that is the cause of the costs request. Rule 19.5 sets out the factors for the Tribunal to consider in deciding whether to order costs and the amount. Rule 19.6 sets out a maximum of $1,000.00 in costs for each full day of attendance at a motion, case conference or hearing.

10Costs at the Tribunal often serve as encouragement for parties to cooperate and act collegially during the Tribunal process and discourages behaviour that impairs the ability of the Tribunal to ensure a fair, effective, and efficient hearing of the issues.

11The Respondent submits that the Applicant is liable to pay it costs because he brought his application unreasonably following what it states are correct denials that were made mostly in part to inaction from the Applicant. It further submits that the Applicant withheld information materially important to the determination of his medical impairments and acted unreasonably when he insisted on proceeding with a hearing on the issue despite being presented with the unfavourable caselaw on the subject.

12I find that the Respondent is not entitled to costs because its submissions on the issue fail identify the amount being requested, pursuant to Rule 19.3. Nor is there any clear reference to the number of days of attendance for which a request for costs should be based on, pursuant to Rule 19.6. As a result, I find that the request is not compliant with Rule 19.3 and I deny the Respondent’s request. This is enough to dispose of the respondent’s request.

13As an aside, even if I considered the respondent’s request despite its deficiencies, I would still deny the request.

14I acknowledge that the Applicant failed to produce all the documents he was ordered to produce, in breach of a Tribunal order. However, the Applicant has mitigated the issue in part by withdrawing his application upon receipt and consideration of the Respondent’s submissions. Having withdrawn the application, the Applicant has effectively removed the Tribunal’s need to continue with the hearing in writing. Moreover, the withdrawal negates the need for the Applicant to produce the documents he was ordered to produce because he is no longer required to meet his onus to prove entitlement to the benefits claimed. It would be unreasonable to enforce a Tribunal order to produce documents relating to the Applicant’s entitlement to the CAT assessment plan that he withdrew his application for.

15My decision to deny the Respondent’s request for costs should not be viewed as tacitly condoning the Applicant’s breach of a Tribunal order. Instead, it demonstrates that a party’s requests for costs must comply with rule 19 in its entirety. Otherwise, the party making the request runs the risk of having their request for costs denied.

ORDER

16The Applicant withdrew the application and thus a hearing and decision on his entitlement to the CAT assessment plan, interest, and an award is not required.

17The Respondent’s request for costs is denied because it does not comply with rule 19.3 of the Rules.

18The application is dismissed, and the Tribunal file shall be closed.