Thompson v. Intact Insurance Company, 2016 CanLII 60729 (ON LAT)

Released August 16, 2016 | Full Decision [CanLII]

This is one of the first AABS decisions from the LAT. The applicant brought an AABS application to determine entitlement to a denied treatment plan. Prior to the hearing, Intact agreed to fund the treatment plan. Despite the settlement, the applicant sought to recoup its costs of preparing for the hearing. The LAT was forced to decide two issues:

1. Can an applicant recover fees/costs from the other party incurred for preparing an applicant on an issue that resolved prior to the case conference?
2. If yes, was the applicant entitled to its costs?

The LAT has the ability to award costs. However, it can only do so in accordance with s.17.1 of the Statutory Powers Procedure Act and 19.1 of the LAT Rules. Therefore, the LAT can only award costs where:

…a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith…

On issue number one, it was held that costs could be awarded even though the initial issue had settled before the hearing. According to 19.1, costs may be requested in a “proceeding”.  Under rule 2.17, a proceeding is defined as the “entire Tribunal process from the start of an appeal to the time the matter is finally resolved”. In this case, the matter did not stop being a proceeding. First, there was no notice of withdrawal. Second, there was still the outstanding issue of costs. The LAT wrote:

In this case, we find that the Applicant could raise the issue of costs during the proceeding, even though the initial issue had been settled, for the following reasons:

• The issue of costs was associated with the main issue that was in his Application. It was not a stand-alone issue; and

• The Applicant did not withdraw his application.

The LAT did not decide the second issue. The LAT ordered a second hearing by teleconference to determine whether Intact had acted unreasonably, frivolously, vexatiously, or in bad faith.