Citation: Hariri v. Allstate Insurance Company of Canada, 2023 ONLAT 21-009029/AABS

Licence Appeal Tribunal File Number: 21-009029/AABS

In the matter of an Application pursuant to section 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Khaldon Al Hariri

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Taivi Lobu

APPEARANCES:

For the Applicant:

Andrew Franzke, Counsel

For the Respondent:

Meredith Harper, Counsel

Stanford Cummings, Counsel

By Written Submissions:

July 25, 2023

BACKGROUND

1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on September 6, 2020.

2A four-day video conference hearing was scheduled to start at 9:30 a.m. on Monday June 17, 2023.

3The applicant did not appear for the scheduled hearing. The 9:30 a.m. start-time of the hearing was postponed as Tribunal staff and the respondent sought to contact the applicant. The respondent requested that the Tribunal wait until 10:10 a.m. before proceeding in the absence of the applicant.

4At 10:10 a.m. counsel for the respondent advised that she had just been served with a “Notice of Withdrawal” from the applicant, sent at 10:01 a.m.

5The respondent sought costs pursuant to Rule 19 of the Tribunal’s Common Rules. Written submissions were received from both parties.

ANALYSIS

6Under Rule 19, the Tribunal may order costs where one party has acted unreasonably, frivolously, vexatiously or in bad faith. The Tribunal has long held that costs “are to deter conduct that threatens the orderly and civil resolution of an application and to ensure that the Tribunal’s process and the other participants are respected.” (16-000075 v Wawanesa Mutual Insurance Company, 2017 CanLII 35323 (ON LAT) at para 35.)

7The respondent submits that the applicant did not advise that the application was to be withdrawn, and that the insurer was forced to fully prepare for the four-day hearing, including preparation of its medical experts. The applicant submits that counsel who had carriage of the file for the hearing instructed a staff person at his office to file a withdrawal at 2 pm on the Friday afternoon before the hearing and, assuming this had occurred, no one appeared for the applicant for the video conference hearing on the Monday.

8In reply to the applicant’s submission, the respondent stated she had emailed applicant counsel earlier that afternoon, at 12:31 pm on the Friday, regarding the availability of a physician to testify at the hearing. However, applicant counsel did not respond, nor did he respond to the respondent’s two emails sent urgently for a status report on Monday morning, after the hearing start time.

9I appreciate the applicant’s submission that cost awards are not to punish administrative errors or to address inconvenience because an application has been withdrawn. However, I find that the circumstances here go beyond administrative error or collateral inconvenience.

10The applicant’s failure to have adequate measures in place to inform the Tribunal and respondent in a timely manner of its intention to withdraw an application scheduled for a four-day hearing, caused a wholly unnecessary expenditure of resources on the part of the Tribunal, the respondent, witnesses, an interpreter, and a court reporter. It reflects a blatant disregard of all involved. Such conduct is amplified by the applicant’s failure to respond to the respondent’s communications sent the Friday afternoon before and the morning of the hearing.

11I find the applicant’s conduct and procedures to be unreasonable and disrespectful, undermining efficient and effective processes. It is an appropriate circumstance for costs to deter future conduct of this nature.

12While the respondent has requested a costs award of $4,000 at the maximum amount of $1000 per day for the four full days scheduled for hearing, costs awards at the Tribunal are made sparingly and compensation for the other party is not a factor in assessing quantum. Considering the impact on the applicant while providing deterrence against future unreasonable and frivolous conduct in Tribunal proceedings, costs are ordered against the applicant at $400.

ORDE

13The respondent is entitled to costs in the amount of $400.