Licence Appeal Tribunal Decision

Citation: Lustig v. Economical Insurance Company, 2025 ONLAT 23-015610/AABS Licence Appeal Tribunal File Number: 23-015610/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:

Daniel Lustig

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

John Chui, Paralegal

For the Respondent:

Ainsley Shannon, Counsel

HEARD:

By Way Of Written Submissions

OVERVIEW

1Daniel Lustig, the applicant, was involved in an automobile accident on January 3, 2019, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $891.53 for Chiropractic treatment, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated April 7, 2023?

ii. Is the applicant entitled to $1,576.80 for Chiropractic treatment, proposed by Complete Rehab Centre in a plan dated October 16, 2023?

iii. Is the respondent entitled to costs?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not been removed from the Minor Injury Guideline and therefore it is not necessary to assess whether the plans are reasonable and necessary. The applicant is not entitled to interest. The respondent is not entitled to costs. The application is dismissed.

ANALYSIS

Are the treatment plans in dispute reasonable and necessary?

4Since the applicant has not been removed from the Minor Injury Guideline, it is not necessary to assess whether the plans are reasonable and necessary.

5The applicant is arguing he is entitled to both plans because they are reasonable and necessary. To receive payment for a treatment and assessment plan under ss. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

6While the applicant argues entitlement on the basis that the plans are reasonable and necessary, I note that the applicant did not bring forth the issue of the MIG on this application. The respondent argues that the applicant is not entitled to the plans in dispute because the applicant remains subject to the MIG and that issue is not being disputed by the applicant on this application and therefore it is not before me. A review of the notices of denial for both plans in dispute confirm that the respondent cited the MIG in denying the plans.

7Since the applicant is seeking entitlement to plans outside of the MIG limit without either first being removed from the MIG or seeking removal on this application, any analysis of whether the plans are reasonable and necessary is unwarranted.

8For the reasons above, I find, on a balance of probabilities, that the applicant is not entitled to the plans in dispute.

Is the respondent entitled to costs of $1,000.00?

9I find that the respondent is not entitled to costs.

10The applicant was before this Tribunal previously regarding the same accident, seeking to be removed from the $3,500.00 MIG limit. The applicant also sought entitlement to four plans for physiotherapy services and a fifth plan for an orthopaedic assessment, with interest: Lustig v Economical Insurance, 2023 CanLII 136 (ON LAT). The Tribunal’s findings, in the decision dated January 5, 2023, included that the applicant’s injuries are predominantly minor, that the applicant had already exhausted the MIG limit available to him, and therefore any analysis of the plans in dispute was unwarranted.

11I note that the two plans before me are not the same plans dealt with previously by the Tribunal. The applicant sought entitlement to the plans on this application and the respondent denied them. Accordingly, the applicant exercised his right to bring this dispute to the Tribunal under s. 280 of the Insurance Act.

12The Case Conference Report and Order notes that the respondent sought to add the issue of costs against the applicant and the issue was added on consent. I note the response filed by the respondent dated January 2, 2024 identifies the related previous decision alerting both the applicant and the Tribunal of that decision. The applicant was represented by the same counsel in the previous decision as the counsel that submitted the application that is now before me. The applicant is now represented by a different representative. The respondent sought costs from the beginning of this application and has maintained that request for the following reasons.

13The respondent argues the applicant has acted unreasonably, frivolously, vexatiously, in advancing issues that have no likelihood of success. Essentially, if a reasonable and necessary analysis is unnecessary for proposed plans while the applicant is subject to the MIG, as found in the previous decision, then that analysis is also unwarranted on this application because the applicant is still subject to the MIG and is not disputing removal. Still, the respondent makes arguments to put its best foot forward including taking me through medical evidence and the doctrine of res judicata.

14The respondent seeks $1,000.00 in costs under Rule 19 of the Licence Appeal Tribunal Rules, 2023 (Rules). I find that the respondent has complied with Rule 19.2 by making the request in writing in its response filed with the Tribunal. Under Rule 19.3, the Tribunal ordered that the issue be heard together with the substantive issues in dispute and set a timetable for submissions. On Monday February 24, 2025, the Tribunal reminded the applicant that reply submissions had not been filed and to confirm in writing if they were not going to be filed. On Thursday February 27, 2025, the applicant confirmed in writing that he did not intend to file reply submissions. I find that the applicant had sufficient opportunity to reply to the applicant’s submissions, including on costs, but chose not to do so.

15In my view, for purposes of my decision, Rule 19.1 and Rule 19.5 must be read together. Rule 19.1 states costs may be requested when another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 states, in deciding whether to order costs and the amount of costs to be ordered, I must 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,

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

16The respondent argues the applicant is attempting to circumvent the operation of the MIG by seeking entitlement to plans without disputing the MIG, and unnecessarily prolonging this dispute while running up the respondent’s costs. The applicant’s initial submissions argue that granting costs is an exceptional remedy requiring an evidentiary record and there is no record of the type of misconduct alleged by the respondent.

17I find that the applicant has a right to dispute the denial of each of the plans on this application. For this reason, I find that the applicant has not acted unreasonably, frivolously, vexatiously, or in bad faith by exercising his right to dispute a denial by simply bringing this application. However, with the benefit of having considered all of the applicant’s submissions generously and assuming that all assertions of fact are true unless they are obviously implausible, I find that there was no likelihood of success. I have also considered that the applicant is represented on this application and had the benefit of this Tribunal’s previous decision. The Tribunal previously found that the applicant’s injuries are predominantly minor, that the applicant had already exhausted the MIG limit available to him, and therefore any analysis of the plans in dispute was unwarranted.

18On this application, the applicant is arguing the plans in dispute are reasonable and necessary without disputing the MIG which the respondent relies on in its denial notice. In my view, this may fall into the well-recognized category of being frivolous. However, even if that is the case, I must still consider Rule 19.5 in deciding whether to order costs and I find that the respondent’s general submissions on costs do not establish that I should exercise my discretion in favour of an order for costs based on the factors in Rule 19.5. While Rule 19.1 addresses when a party may request costs, it is Rule 19.5 that sets out the factors I must consider in deciding whether to order costs.

19As to the assertion that the applicant is attempting to circumvent the MIG by not disputing the MIG issue. I find that the applicant did not engage in any conduct that created any barrier for the respondent to rely on the MIG in response to the applicant. The applicant making unsuccessful arguments is not misconduct. Therefore, I find that the respondent has not pointed me to serious misconduct that would attract an order of costs.

20I find that the applicant did not breach a direction or order of this Tribunal in bringing this application or disputing the plans denied by the respondent. The respondent refers me to this Tribunal’s previous decision, but I find that the previous decision does not contain any direction or order that the applicant may have breached in arguing this application before me.

21Based on the general context of this application as reviewed above, I find that the applicant did not engage in any behaviour that interfered with my ability to carry out a fair, efficient, and effective process.

22The respondent did not argue it was prejudiced except that this application prolonged the litigation between the parties and increased the respondent’s costs. However, costs under Rule 19.5 are not meant to compensate the respondent for the inconvenience of, or allocation of time and resources to, responding to an application that is unsuccessful. The consequence of not making successful arguments on an application is that the claim will fail, as it did in this case.

23Further, the respondent did not address the potential impact an order of costs would have on individuals accessing the Tribunal system. I am not inclined to order costs without the requesting party meaningfully engaging with the factors that I must consider under Rule 19.5.

24For the reasons above, I find, on a balance of probabilities, the respondent is not entitled to costs of $1,000.00.

ORDER

25For the reasons above, I make the following orders:

i. The applicant is not entitled to the plans in dispute.

ii. The respondent is not entitled to costs.

iii. The application is dismissed.