16-002782/AABS v. Aviva Canada Insurance, 2018 CanLII 39370 (ON LAT)

This decision reinforces that the Licence Appeal Tribunal will not award costs except in cases of frivolous, vexatious or bad faith conduct. In particular, the Tribunal held that the threshold for awarding costs is high and cost awards are not meant to compensate the parties for the cost of their involvement in claims.  

Date Heard: November 9, 2017 | Full Decision [PDF]

The applicant, P.R., was injured in an automobile accident and claimed accident benefits from Aviva. The applicant filed an Application with the Licence Appeal Tribunal when Aviva denied a Treatment and Assessment Plan that fell outside the Minor Injury Guideline. Following a case conference, a hybrid hearing was scheduled. On the evening prior to the hearing, the applicant’s counsel advised the Tribunal by email that P.R. was withdrawing his application. The hearing did not proceed and Aviva requested an award for costs.

Aviva argued that the application was unreasonable, meritless and frivolous, and that P.R. had failed to provide medical evidence to substantiate his claims. Aviva further argued that P.R.’s conduct constituted unreasonable behaviour and an abuse of process, through his failure to pay for the production of certain medical records, his request for an extension of the time to deliver written submissions, and the withdrawal of the application on the eve of the hearing.

The Tribunal held that the applicant’s course of conduct was “nowhere near the threshold of unreasonable, frivolous, vexatious or in bad faith.” The Tribunal noted that costs awards under Rule 19 “are not designed to compensate parties for suffering an inconvenience or for the cost of their involvement in a proceeding” (para 14). Aviva sought a reconsideration of the decision.

The Associate Chair, Jonathan Batty, cited the definition of “vexatious” and “frivolous” in 16-000066 v Waterloo Regional Municipalities Insurance, 2017 CanLII 35320 (ON LAT), 2017 CanLII 35320 with approval at paragraph 20:

When the party bringing the proceeding is acting without reasonable or probable cause or excuse or merely wishes to annoy or harass his or her opponent, such conduct could be said to be “vexatious”.

A party could be said to have acted “frivolously” if the claim lacked a legal basis or legal merit; it was not serious or not reasonably purposeful; was clearly insufficient on its face; or where no rational argument based upon the law could be presented in support of that claim.

The Associate Chair ultimately denied Aviva’s request for reconsideration on the issue of costs because the applicant had filed some medical evidence to support his claims, meaning that the application was not totally without merit or that the application was meant to annoy or harass Aviva. P.R.’s conduct did not meet the high threshold for awarding costs.

 

Read the full decision [PDF]
Gillian Mays
Written by

Gillian attained an Honours Bachelor of Arts degree in English Literature from Queen’s University in 2011, receiving the Roscoe R. Miller Award and the Arts 1915 Price for academic excellence. She received her Juris Doctor from Western University in 2014 and was placed on the Dean’s Honour List.

Prior to joining Bogoroch & Associates LLP, Gillian articled at a full-service firm in London, and was called to the Bar in 2015. She has been published in The Advocates’ Journal and participated in the Gale Cup Moot, and is a member of the Canadian Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.