Guest Author: Bill White, Bogoroch & Associates LLP
LAT Determines that Aviva Insurance Company Has Acted in Bad Faith
An insurer may move to dismiss your case as “abandoned” at the Licence Appeal Tribunal if you miss one or more deadlines. In the recent case of Ahmed v. Aviva Insurance Company, Aviva Insurance Company proceeded with a motion to dismiss an application as abandoned, despite previous counsel’s death and the applicant’s personal barriers, and was found by Vice Chair Maedel to have acted in bad faith. In the result, the motion was dismissed and Aviva was ordered to pay costs to the applicant.
Background
The applicant, an 84-year-old blind man, was injured in a motor vehicle accident. He was denied accident benefits and submitted an application to the Licence Appeal Tribunal. During that process, the applicant missed one deadline for written submissions with respect to a scheduled written hearing at the LAT.
Following this missed deadline, Aviva Insurance Company filed a motion to dismiss the case as abandoned. In response, Aviva was sent correspondence confirming that the applicant intended to continue with his application. While he did miss one deadline, the circumstances were exceptional. The applicant was blind, injured, could not speak English, and his previous lawyer had passed away.
Despite these exceptional circumstances and the applicant’s demonstrated intention to continue, Aviva Insurance Company maintained that the applicant had abandoned his case at the LAT.
The Motion Hearing
At the motion, counsel for the applicant relied on a line of jurisprudence in support of the proposition that an applicant’s case will not be abandoned if they provide written reasons for their missed deadline and attend the hearing itself. It was submitted that Aviva was acting in bad faith by continuing to argue that the applicant had abandoned his case when he was present, willing, and able to proceed.
The Order
In his written reasons, Vice Chair Ian Maedel wrote that he was “shocked that the respondent continued to proceed with the motion to dismiss the application as abandoned in the circumstances (especially considering previous counsel’s death and applicant’s personal barriers)”. The applicant’s previous lawyer had died, which justified a delay in the filing of written submissions.
Vice Chair Maedel held that, “the respondent has acted in bad faith, especially when it ignored the material change in circumstances and pressed on with the motion when it was obvious it lacked any merit. Instead of conducting case management to keep the case on track, the parties were instead forced to argue the motion.”
While costs are rarely awarded at the LAT, except in the most exceptional of circumstances, Vice Chair Maedel found that the conduct of Aviva in this matter justified an Order of Costs against them.
