First Costs Award Levied by LAT Against Insurer for Unreasonable Conduct: $250 for Breaching Production Order

By Suzanne Clarke Mar 13, 2017

The decision of B.F. v Wawanesa Mutual Insurance Company, LAT File No.: 16-000433/AABS, highlights the importance of complying with the terms of Orders issued by the Licence Appeal Tribunal (“LAT”), and the consequences of failing to comply with such Orders.

The Applicant, B.F., submitted an application to LAT for entitlement to Accident Benefits pursuant to the Statutory Accident Benefits Schedule.

A Case Conference addressing the issues in dispute was held on September 22, 2016 and the Adjudicator issued an Order for the exchange of productions by October 25, 2016.

B.F. followed up with Wawanesa via letters on two occasions and subsequent phone calls regarding the status of the productions referenced in the Case Conference Order. Ultimately, Wawanesa failed to comply with the timeline in the Order. B.F. therefore requested an additional Production Order, an extension of time for submissions and costs.

On November 2, 2016, LAT issued a second Production Order where Wawanesa was required to produce the documents to B.F. by November 4, 2016. This subsequent Order also stipulated that the parties were to file submissions regarding costs by November 9, 2016.

On November 7, 2016, B.F. filed submissions for costs.

On November 8, 2016, Wawanesa’s Counsel wrote to B.F.’s Counsel advising that the productions were requested from Wawanesa, and would be provided once they were received.

One day later, LAT called Wawanesa’s Counsel and confirmed that Counsel was in receipt of the second Production Order and B.F.’s submissions on costs. Wawanesa filed its submissions on costs later that same day, arguing that it had not acted unreasonably, frivolously, vexatiously or in bad faith to warrant an award of costs.

Adjudicator Lester held that further to Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure, Wawanesa acted unreasonably during the proceedings, as no attempts were made to produce the required documentation until a request for costs was made by B.F. Wawanesa was also found to have acted unreasonably as it provided no explanation for the non-compliance with the Production Orders.

Adjudicator Lester found Wawanesa’s actions or lack thereof, to be disrespectful of LAT’s process. She further held that the resulting delay in the proceeding undermined LAT’s rationale of “...effective and efficient resolution of disputes in a manner that ensures access to justice for all parties”.

As Wawanesa failed to respect LAT’s rules, Adjudicator Lester awarded $250.00 against Wawanesa, where B.F.’s counsel sought an award of $1,000 in the circumstances.

This case makes it clear that failure to comply with an Order from LAT, especially with no adequate explanation,  may amount to unreasonable conduct and therefore could attract cost consequences. Ultimately, it goes without saying that all Counsel need to ensure that they are in compliance with the Orders issued by LAT. Further, Counsel should not hesitate to push for costs when opposing counsel exhibit disregard for terms of an Order. With that all having been said, it is not easy to believe that a $250 costs award will go very far to reinforce proper conduct by any party that breaches an order.

Suzanne Clarke is a member of the License Appeal Tribunal practice group. Please email Suzanne if you have any questions about this blog or a LAT file.