Category: Costs

Hathaway-Warner v. TD General Insurance Company (20-002110)

The claimant, who had previously been deemed CAT pursuant to Criteria 8, sought entitlement to attendant care benefits up to the $6,000 monthly maximum. The respondent had approved entitlement to ACBs up to $2,642.91 per month. The claimant also sought modifications to her home (totaling $399,763) or, in the alternative, funding for the purchase of a new home to accommodate her disability (totaling $931,000). With respect to ACBs, Adjudicator Norris found that the claimant was entitled to ACBs up to $3,589.07 per month. While the Adjudicator preferred the claimant’s assessment over the respondent’s IE report, the calculation of quantum of ACBs had to be done in accordance with the Form 1 rates at the time of the accident in 2010. As such, the claimant’s maximum monthly entitlement to ACBs was $3,589.07. However, Adjudicator Norris went on to find that ACBS were not payable because there was no evidence of any incurred ACBs for the period in question. With respect to the proposed home modifications or alternative housing, Adjudicator Norris found that the claimant had not met her onus of demonstrating that the requested expenses were reasonable or necessary to eliminate the effects of her impairments as a result of the accident. The claimant’s limitations in daily living were primarily mental and behavioural. The overarching concern by the healthcare providers at the hearing was that the claimant’s home was disorganized and cluttered. The home modifications proposed were only a peripheral response to the disorganization and clutter compounding the claimant’s mental and behavioural challenges. Adjudicator Norris noted that the respondent had approved funding for a personal organizer, which was a more efficient way to reduce the main barriers faced by the claimant. Costs in the amount of $1,000 were ordered against the respondent for its conduct in not abiding by the page limits for submissions as ordered by the Tribunal and in obtaining a recording of the hearing without providing a timely copy to the claimant as required under the Rules.

Sahadeo v. Pafco Insurance Company (19-006331)

The claimant sought catastrophic impairment designation under Criterion 7 (53% WPI, rounded to 55%) and/or Criterion 8 (marked impairment in Adaptation) of the SABS, as well as entitlement to various medical benefits. Vice Chair Lester found that the claimant was not catastrophically impaired. With respect to Criterion 8, Vice Chair Lester felt that the claimant suffered a moderate (not marked) impairment in Adaptation. The claimant had no issues completing the tasks assigned during either of the OT assessments, and showed no failures to adapt or decompensate in the face of work-like stressors. The claimant also testified that he was able to take his son to daycare every day, showing no reliability issues with attendance. With respect to Criterion 7, Vice Chair Lester accepted the insurer’s lower WPI rating for psychological impairments, given her determination that the claimant suffered a moderate (not marked) impairment in Adaptation, which brought the WPI down to 37%. Vice Chair Lester accepted that three denied treatment plans for physical treatment were reasonable and necessary (up to the remaining policy limits), emphasizing that pain relief is a legitimate goal of treatment. Vice Chair Lester went on to award the claimant costs in the amount of $500 with respect to counsel for the insurer’s conduct in providing an erroneous opinion on the validity of a summons issued to an IE assessor, which resulted in the assessor not attending the hearing on the date he was scheduled to appear.

Afshan v. Security National Insurance Co. (18-007658)

The claimant had initially sought a special award related to denial of NEBs. At a teleconference hearing an adjuster for the insurer gave testimony regarding the denial of benefits. At the conclusion of the hearing, the claimant requested that costs be added as an issue in dispute. Adjudicator Hines granted the request and the parties filed submissions. The claimant alleged that the insurer had unreasonably attempted to raise a preliminary issue to bar her from claiming NEBs based on s.44 non-compliance, when the insurer had not given proper notice when arranging the IE, and had also failed to comply with a production order. The claimant alleged that this behaviour resulted in a delay and prevented a fair hearing and sought costs in the amount of $12,500.00. Adjudicator Hines ruled that the insurer was not acting unreasonably by arguing s.44 non-compliance, but did act unreasonably and was in breach of the LAT order for failing to disclose all of the workflow correspondence between the insurer and the IE facility. During the hearing, claimant’s counsel noted that several pages were missing from the documents, which delayed the hearing as further review had to be undertaken. Adjudicator Hines rules that the insurer’s failure to comply with the production order constituted a blatant disrespect of the Tribunal’s process, and that the claimant had a right to transparency in understanding the adjusting of her claim and denial of benefits. As the delay caused an additional day to be added to the scheduled hearing, Adjudicator Hines awarded the claimant $500.00 in costs.

Robinson v. AIG Insurance (20-003795)

The claimant was involved in a serious motor vehicle accident in March 2019 and was determined to be catastrophically impaired by the insurer. She applied to the LAT seeking entitlement to ACBs and various medical/rehabilitation benefits. All issues in dispute except ACBs, a special award, and costs were withdrawn after the commencement of the hearing. The hearing in this matter began with the claimant’s motion to have Vice-Chair Farlam recuse herself from the hearing. This was the 18th motion brought during the proceeding. Two reasons were submitted for the recusal request: (1) the claimant had been denied the right to add 14 witnesses to the hearing, and (2) the allegation that Vice-Chair Farlam had a “leaning, inclination, bent or predisposition” favouring insurers. The recusal motion was denied. With regards to the benefits in dispute, Vice-Chair Farlam found that the claimant was not entitled to payment for ACBs because she had not proven that the ACBs in dispute were incurred. Vice-Chair Farlam declined to use her discretion to deem the expenses incurred. The claim for a special award was denied. Vice-Chair Farlam order the claimant to pay $100 for 5 motions that were unreasonably brought without sufficient notice and too late in the proceedings (i.e., on the eve or during the hearing).

Bablak v. Gore Mutual Insurance Company (20-002022)

The matter had previously been set down for a five-day hearing to commence on June 7, 2021. On June 7, 2021, counsel for the claimant authored an email to the LAT and the insurer’s counsel stating that the claimant was withdrawing the LAT Application. The claimant did not submit a formal Notice of Withdrawal. The insurer had incurred significant costs preparing for the hearing, including preparation of witnesses and obtaining a court reporter. The insurer requested costs under Rule 19.2, alleging that the claimant had acted unreasonably. Adjudicator Watt ruled in the favour of the insurer, finding that the claimant acted unreasonably by waiting until the day of hearing to deciding not to proceed with the Application, when they had ample time beforehand to make such a decision. Adjudicator Watt also noted that the failure to file a formal Notice of Withdrawal interfered with the Tribunal’s ability to carry out a fair and efficient and effect process. Adjudicator Watt noted that Rule 19.6 restricted costs to $1,000.00 for each full day of attendance at a hearing, and awarded the insurer the full sum of $1,000.00.

Joseph v. ACE INA Insurance (19-010124)

The claimant was involved in a motor vehicle accident in 2018. He was later determined to be catastrophically impaired as a result of the accident. The claimant applied to the LAT seeking entitlement to numerous medical and rehabilitation benefits, including the cost of cancellation fees, home modifications totaling $262,619.50, the cost of a trip to Haiti, and provider travel time for a psychologist. The majority of the treatment plans in dispute had been partially approved. Both parties claimed costs of the hearing in relation to allegations of conduct resulting in a delayed and unnecessarily lengthy hearing. The insurer also sought judgment in relation to unspecified costs previously awarded in relation to two motions. Adjudicator Grieves found that the claimant was entitled to partial payment of the proposed cost of a trip to Haiti for therapeutic purposes (the claimant was from Haiti; the insurer had previously approved two trips and denied the third proposed trip; and in Haiti, the claimant reportedly participated in “family cultural practices and received alternative therapies.”) The claimant was not entitled to the remaining issues in dispute. The travel time of the psychologist was considered not reasonable and necessary because the claimant had access to approved transportation expenses and on several occasions had indicated a preference for receiving treatment at the therapist’s office. The insurer had previously approved home modifications in the amount of $30,670.75. Adjudicator Grieves found that the disputed amount was not payable because the modifications proposed in the claimant’s report were largely to address speculative future needs, not to address the claimant’s current disability. Neither party was awarded costs of the hearing. Adjudicator Grieves held that the standard for ordering costs was very high and found that both parties contributed to the delay and inefficiency of the hearing. The insurer was awarded $350 in costs in relation to two prior motions. Costs were awarded because the claimant’s “conduct interfered with the Tribunal’s ability to conduct a fair, efficient and effective process, and resulted in wasted resources and prejudice to the respondent.” In addition, Adjudicator Grieves found that the claimant’s “misconduct was serious in that it resulted in delay of the start of the hearing and wasted time for the parties in preparing and responding to a motion that the applicant succeeded on and then essentially requested to ‘undo’.”

Ahmed v. Aviva Insurance Company (19-999565)

The insurer brought a motion to dismiss the LAT application as abandoned; the claimant opposed the motion, and sought costs in response. The claimant was 64 years old, visually impaired, and did not speak English. The Case Conference took place on April 1, 2020. The written hearing was scheduled for November 30, 2020. In a motion order dated September 21, 2020, the claimant’s counsel was noted to be deceased, and the written hearing was adjourned to March 29, 2021. The claimant’s submissions were due on February 22, 2021. On February 26, 2021, the insurer’s counsel was advised that alternate counsel for the claimant was on maternity leave and the firm was in transition. No written submissions were provided and five months without communication ensued. At the motion hearing on April 13, 2021, new counsel for the claimant attended as agent and indicated they were not yet retained, but would be taking carriage of the claimant’s file. The motion had been adjourned several times to allow new counsel the opportunity to review the file and obtain instructions. The insurer argued that the claimant failed to comply with the deadline for submissions. The insurer argued it was prejudiced by the delay and nothing had been done to remedy the claimant’s contravention of the previous order. The claimant was under the impression his previous counsel was addressing the matter and was unaware of his previous counsel’s death. The claimant admitted to inadvertently missing the first written submissions. The claimant’s current counsel was not retained until April 13, 2021 and took immediate steps to remedy the situation. Vice Chair Maedel granted the claimant’s motion for costs in the amount of $250. The insurer was found to have acted in bad faith and ignored the material changes in the circumstances. The insurer continued to move the motion, which lacked merit, and which interfered with the efficient, effective hearing process.

Polat v. TD Home and Auto Insurance Company (20-002912)

The insurer raised two preliminary issues in advance of the hearing: (1) to bar the claimant from proceeding with her claim for IRBs due to failure to commence her application withing the two year limitation period; and (2) to dismiss the application for procedural delay and awarding costs. Vice Chair Boyce found the applicant was statute barred from proceeding with her IRB claim because she failed to appeal the insurer’s denial within the two year limitation period. Vice Chair Boyce noted it was unclear what the claimant’s position was on the limitation period or what prompted her to reapply to the Tribunal nearly 11 months after the expiration of the limitation period after withdrawing her initial application in May 2018. The insurer did not agree to waive the limitation period when the claimant withdrew her initial application. The insurer advised that at no point had the claimant proposed an extension or tolling agreement that would allow her to proceed with her claim on consent. Vice Chair Boyce had no basis to dispute those assertions. Vice Chair Boyce ordered the insurer was entitled to costs in the amount of $250 based on the claimant’s failure to participate in Case Conferences, failure to follow LAT orders, and failure to provide written submissions.

J.T. v. Aviva Insurance Company (18-003238)

The claimant submitted a request for reconsideration arising out of a decision which granted entitlement to some benefits, interest, and an award of 25 percent of the disputed amounts for three treatment plans unreasonably withheld by the insurer. The decision determined the cost of the withheld treatment plans and the percentage to be applied, but the calculation of the award was not completed. There was a dispute over the calculated interest and the award following the decision, and the claimant subsequently retained an accountant who calculated the award to be $10,657.03. The insurer accepted the accountant’s calculation, and made payment. The claimant request payment of the cost of the accounting report, but the insurer refused. As such, the claimant filed a Notice of Motion requesting payment of the disbursement. Vice Chair Hunter denied the motion on the basis that there was no provision for the payment of disbursements within the cost regime contained in Rule 19 of the LAT Rules, and the claimant sought reconsideration. Vice Chair Hunter denied the claimant’s request for reconsideration, noting that costs are not compensatory but are rather meant to maintain civility and order during proceedings. He further noted that there had not been a single LAT decision that awarded disbursements as part of a cost award.

L.D. v. Gore Mutual Insurance Company (17-002762)

Vice Chair Flude released a decision in which he found the claimant’s motion moot, and requested submissions on costs from the insurer. The LAT Rules consider costs as a deterrent for a party that “has acted unreasonably, frivolously, vexatiously, or in bad faith” in a proceeding. Vice Chair Flude concluded that the claimant acted unreasonably and in bad faith in bringing a motion for relief previously denied by the Tribunal with no new grounds and, during the hearing, making a collateral attack on another Tribunal Order. Vice Chair Flude ordered the claimant to pay costs to the insurer in the amount of $1,000, which he felt would have sufficient deterrent effect.