Category: Costs

Applicant v. Unifund Assurance Company (18-008089)

The insurer filed a request for reconsideration arising from a decision in which the Tribunal found that CAT Assessments were not a medical benefit and therefore their funding did not fall within the $50,000 limit under section 18 of the SABS. Adjudicator Victor dismissed the insurer’s request for reconsideration and granted the claimant’s request for costs in the amount of $100, noting that the insurer had only raised the same arguments it made at the hearing and was essentially trying to re-litigate the decision based on the same arguments.

E.M. v. Pembridge Insurance Company (18-011207)

The claimant sought a determination that her impairments were outside of the MIG and entitlement to medical benefits proposed in three physiotherapy and one psychological treatment and assessment plans. Adjudicator Norris found that the claimant’s injuries were predominantly minor and fell within the MIG. He relied on the psychological IE report of Dr. Saunders which found the claimant exhibited mild-to-minimum anxiety and stress. Adjudicator Norris preferred the IE report of Dr. Saunders over the psychological assessment report of N. Dent, as the former reviewed an extensive amount of the claimant’s medical records and provided a clearer and more robust view of the claimant’s condition. Adjudicator Norris awarded costs against the claimant because her hearing submissions were filed late, she omitted medical records from her submissions, and most notably, her representative certified that she served the submissions on counsel for the insurer when in fact she did not.

A.B. v. Aviva Insurance Company of Canada(18-000935)

At the case conference, the Adjudicator ordered the issues in dispute to be heard by way of a written hearing. After the respondent filed their submissions, in which it requested costs, the claimant withdrew their application from the Tribunal. The Tribunal proceeded to close the file without hearing the request for costs. The respondent sought reconsideration of the Tribunal’s decision to close the file as well as a hearing on costs, arguing that the Tribunal violated the rules of natural justice and procedural fairness. Vice-Chair Lester granted the request for reconsideration, but denied the request for costs. She found that the Tribunal’s decision to close the file without adjudicating the costs issue violated the rules of natural justice and procedural fairness. By closing the file, the Tribunal failed to allow the request for costs to be heard. However, the respondent failed to prove that the claimant acted unreasonably, frivolously, vexatiously, or in bad faith.

T.T. v. Aviva Insurance Company (17-002535)

The insurer sought reconsideration of the Tribunal’s award of $300 in costs related to the failure to comply with production of documents. Vice Chair Kershaw granted the reconsideration. She held that the Case Conference Order did not provide a disclosure deadline for the production of documents, so the insurer was not in breach by delivering a surveillance report shortly before the hearing. Further, the Tribunal’s decision to exclude the late surveillance was a sufficient remedy; costs were not additionally warranted.

L.H. v. Aviva Insurance Company of Canada (17-008904)

The claimant failed to make written submissions. The insurer sought the dismissal of the application and costs. Adjudicator Norris concluded that the matter should be dismissed due to the claimant’s default. He also awarded costs of $125 because the claimant’s behaviour was unreasonable and frivolous (she had failed to comply with the Case Conference Order regarding disclosure of her treatment provider, in addition to failing to make submissions).

Applicant v Aviva Insurance Canada (16-005271)

The Tribunal was asked to determine whether, after the claimant withdrew an application prior to a hearing, the respondent was entitled to costs, and whether the Tribunal had the jurisdiction to hear a motion for costs. Adjudicator Norris determined that the Tribunal did have the jurisdiction to hear the respondent’s request for costs, as the respondent had clearly indicated its intent to seek costs prior to the claimant’s withdrawal. However, Adjudicator Norris did not award costs, as the claimant’s conduct, while not professional, was not unreasonable, vexatious, and did not prejudice the respondent.

P.R. v. Aviva Canada Insurance (16-002782)

The insurer requested reconsideration of the LAT’s decision to deny its request for costs, arguing that the claimant’s failure to address serious evidentiary issues throughout he proceeding amounted to frivolous and vexatious conduct warranting a costs award. Associate Chair Batty denied the request. While the LAT did not explicitly apply the definitions of frivolous and vexatious in its decision, the claimant’s actions did not amount to such conduct. The claimant’s application may have been weak, but he filed hundreds of pages of evidence in support of his position and based on that evidence, put forth some rational foundation to advance his position. He was not acting without reasonable or probable cause.

W.E. v. Wawanesa Mutual Insurance Company (17-002054)

The claimant sought entitlement to housekeeping expenses, and the cost of obtaining her employment file for the insurer. Adjudicator Gosio held that the claimant had proven that she suffered a substantial inability to perform the housekeeping services she normally performed prior to the accident, but that she did not prove that the expenses were incurred. The claimant’s only evidence regarding the economic loss of her sister (the service provider) was a statement in the claimant’s affidavit that the sister took a leave of absence from her employment. The adjudicator also held that the expenses could not be deemed incurred because the insurer had provided the claimant with an explanation of benefits earlier in the claim. The insurer was not required to explain the intricacies of the “incurred expense” definition. Finally, Adjudicator Gosio held that the Tribunal could not order the insurer to pay costs to the claimant for her employment records because the insurer had not acted unreasonably or vexatiously.

Y.M.Y. v. Certas Home and Auto Insurance Company (17-004982)

The claimant sought entitlement to a number of medical treatment plans and income replacement benefits. The insurer asserted the claimant failed to meet the disability test for IRBs and also asserted a MIG designation. Adjudicator Ian Maedel, on review of the medical evidence, concluded the claimant sustained predominately minor injuries. The claims for medical treatment plans were denied. Adjudicator Maedel also held that the claimant failed to provide meaningful medical evidence to justify the payment of income replacement benefits. All of the claims were dismissed. Of note, the claimant failed to arrive on one of the hearing dates to be examined and cross-examined. The failure to do so resulted in the insurer incurring court reporter fees. Accordingly, costs were awarded to the insurer in the amount of $250.00.

N.S. v. Aviva Insurance Company (16-000474)

The insurer sought costs after the claimant withdrew her LAT application. Adjudicator Trojek declined to award costs. She held that costs were not appropriate even though the claimant had filed the case conference brief late, among other things.