Charaniya v. TD General Insurance Company, 2024 CanLII 41006

Charaniya v. TD General Insurance Company

Citation: Charaniya v. TD General Insurance Company, 2024 ONLAT 23-002369/AABS

Licence Appeal Tribunal File Number: 23-002369/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:

Riya Rizwan Charaniya

Applicant

and

TD General Insurance Company*

Respondent

DECISION

VICE-CHAIR: Jeremy A. Roberts

APPEARANCES:

For the Applicant: Jono Schneider, Counsel

For the Respondent: Taylor Cawley, Counsel

HEARD by Videoconference: April 15, 2024

OVERVIEW

1Riya Rizwan Charaniya, the applicant, was involved in an automobile accident on January 4, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2On April 11, 2024 (four days prior to the hearing), the respondent emailed both the Tribunal and the applicant to advise that it intended to add the issue of costs. On April 12, 2024 (three days prior to the hearing), the applicant filed a Notice of Withdrawal on this matter.

PROCEDURAL ISSUE

3At the start of the hearing, I raised concerns as to whether this hearing should proceed given that the applicant had withdrawn their application. The respondent argued that given that it had added the issue of costs, case law supported that the hearing should proceed on that issue alone. The applicant did not contest the respondent’s position.

4After considering the issue, I ordered that the matter would proceed to a brief hearing on the sole issue in dispute: costs. I invited both parties to make 10-minute submissions on the issue.

ISSUES

5The issue in dispute is:

i. Is the respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules (2023) (“LAT Rules”)?

RESULT

6The respondent is not entitled to costs.

ANALYSIS

The respondent is not entitled to costs

7I find that the respondent is not entitled to costs to cover the late cancellation of the court reporter.

8Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct. The purpose of Rule 19.1 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a costs award and is an exceptional remedy. Rule 19.6 sets out the maximum amount of costs, which shall not exceed $1,000.00 for each full day of attendance at a hearing.

9The respondent argued that it was entitled to costs to cover the late cancellation of the court reporter because it argued that the applicant failed to adhere to LAT imposed deadlines, was unresponsive and uncommunicative during the pre-hearing period, and withdrew the application at the last minute without warning to the respondent. It argued that the late withdrawal meant that the respondent was unable to cancel the court reporter it had hired, which meant it was incurring that cost.

10The applicant argued that the respondent failed to meet any of the factors outlined in Rule 19.5 and argued that it upheld its responsibilities per the case conference report and order.

11In considering this request, I look to Rule 19.5 of the LAT Rules, which encourages adjudicators to consider the seriousness of the alleged misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether the party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, and the prejudice to other parties. When considering these factors, I find that the respondent’s case does not meet the high bar required to attract a finding of costs. Because the applicant ultimately withdrew the application, there is little prejudice on the respondent. Moreover, the alleged behaviour (i.e. failing to meet LAT-imposed deadlines) would have damaged the applicant’s case, not the respondent’s. I find that none of the alleged behaviour rises to the level of unreasonable, frivolous, vexatious, or in bad faith and costs are not merited.

ORDER

12I order the following:

i. The respondent is not entitled to costs.

ii. The application is now closed.