Volume. 7 Issue. 27 – July 19, 2023
This week’s edition explores three cases wherein the Tribunal found an award of costs to be required. In ‘Systemic Principles of Fairness Undermined’, costs were awarded against the insurer, for having failed to abide by written submission page limit guidelines, as well as failing to provide the applicant with a copy of the hearing transcripts they had secured.
In ‘Motion Sickness’, costs were awarded against the applicant, given the finding that allegations of wrongdoing by the respondent and its counsel are frivolous and vexatious. Then, in ‘Ill Conceived Motion Costly’, a modest costs award against the insurer for bringing what was described as an ill conceived motion.
LAT Update – What Difference Did A Year Make?
The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?
Costs For Failure to Provide Transcripts and Not Abiding by Page Limits
Systemic Principles of Fairness Undermined – Rendered CAT as a result of injuries sustained in a July 2010 MVA, the applicant Hathaway-Warner, in 20-002110 v TD Insurance, sought entitlement to a number of benefits, including $399,763 in home modifications and $931K for alternative housing. The Tribunal found that the “home modifications proposed are a peripheral response to the disorganization and clutter compounding the Applicant’s mental and behavioural challenges…There is no compelling evidence which suggests that the home modifications or alternative housing will provide long-term or lasting relief or benefit for the Applicant as it pertains to the organization of her living space.”
Further, “the Applicant’s primary issues are centered around mental and behavioural impairments which are best addressed through the employment of a personal organizer and personal support workers. Alternative housing will not eliminate or significantly reduce the Applicant’s accident-related barriers and thus is not reasonable and necessary.”
With respect to a procedural matter, Hathaway-Warner objected to the fact that the written submissions of TD were 20 pages, as opposed to the 15 pages as ordered. Hathaway-Warner asked that the panel either not read the additional 5 pages, or in the alternative award costs. The panel, while accepting the submissions as filed, made clear that it was not condoning the breach of the Tribunal’s order. Hathaway-Warner also sought costs on the basis of TD having received a copy of the transcript of the hearing without providing the Applicant with a copy.
The Tribunal found that Hathaway-Warner was “entitled to costs because the Respondent acted improperly in not providing a timely copy of the hearing transcript to the Applicant. The Respondent’s conduct is contrary to Rule 13.3… A party who makes a recording must provide a copy to all other parties and, upon request, to the Tribunal.” The failure to do so prejudiced Hathaway-Warner, “forcing her to rely on excerpts of the transcript that were cherry-picked by the Respondent.” This “practice is serious and if condoned, can have systemic impact on fairness between parties beyond just this case.”
The Tribunal found that the “Respondent’s conduct in failing to provide the Applicant with a timely copy of the transcript and in exceeding the ordered page limits of submissions, to be unreasonable and within the scope of Rule 19. Such conduct is subject to costs: it undermines systemic principles of fairness and the orderly and respectful conduct expected of parties coming before the Tribunal.” Accordingly, “Costs in the amount of $1,000.00 are ordered against the Respondent…a cost award in the amount of $1,000.00 is reflective of the seriousness of the Respondent’s conduct and serves as an effective deterrent for such behaviour by any party during a future hearing at the Tribunal.”
Costs For Frivolous and Vexatious Allegations
Motion Sickness – The Applicant Syed, in 20-015339 v Security National, was ultimately unsuccessful in her attempt to secure a CAT designation. This, despite counsel having pulled out all the stops, and then some, in attempts to cast Security National in a negative light. This included bringing a motion at the end of the hearing seeking $2M in punitive damages on the basis that Security National had breached its duty to act in good faith, in conjunction with a motion for a case for contempt to be stated to the Divisional Court.
The motion for punitive damages also requested the Tribunal “to issue a caution against respondent’s counsel for abusing the process of the Tribunal, breaching section 5.1-2 of the Rules of Professional Conduct in knowingly advancing false evidence or misstating facts and/or otherwise assisting in fraud, crime or illegal conduct.” The motions allege that the respondent and its counsel engaged in serious misconduct, including criminal offences.” Security National for their part sought costs of $1,000.00 for each of the motions, submitting “that the allegations of misconduct are groundless and inflammatory, and that it was unnecessarily put to the expense of responding to them.”
The Tribunal found “that the applicant’s allegations of wrongdoing by the respondent and its counsel are frivolous and vexatious. Accusing a person of committing a crime, acting in contempt, or breaching the Rules of Professional Conduct is extremely serious, and should not be done lightly. I see no merit at all in these accusations.”
Accordingly, the Tribunal “agree(d) with the respondent that the motions were groundless and inflammatory. I find that an award of costs is warranted in the amount of $1,000.00 for each motion. I award costs in this quantum because bringing the motions was highly inappropriate conduct that should not be tolerated, and the respondent was prejudiced by being put to the needless expense of preparing submissions in response.”
Motion Seen as Attempt to Re-litigate
Ill Conceived Motion Costly – Finally, in 21-011746 v Aviva, Aviva at case conference sought a written hearing, however the Tribunal agreed with the applicant Brett that a one day videoconference was appropriate. Not to be deterred, Aviva, upon becoming aware that Brett planned to call upwards of six witnesses, brought a motion for the hearing to revert to written format, as the videoconference could not be completed in one day “and would therefore not be an efficient, proportional, or timely way to resolve the application.” Aviva though withdrew the motion and consented to the videoconference upon the Tribunal indicating they would ensure the hearing would take no longer than the one day.
Brett sought costs as a result of the bringing of the motion, contending that Aviva “brought the motion to deny her right to be heard by driving up her legal costs and causing delay.” The Tribunal found that Brett was entitled to $300 in costs for the motion, as the motion “sought to relitigate the issue of hearing format, which was argued and decided at the case conference… The proper way for the respondent to address its concern about finishing the hearing on time was not to unilaterally request a change of hearing format, but to work out a schedule with the applicant.”
Brett was “prejudiced because preparing submissions on the motion caused her to incur additional legal costs and diverted her from preparing for the hearing on the merits.” The Tribunal however did not make a finding of bad faith, as “while the motion was an ill-conceived attempt to reduce the respondent’s legal costs, I do not see reason to infer that it intentionally sought to drive up the applicant’s legal costs and cause delay.”
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