Individuals whose personal injury claims were unsuccessful may still be entitled to costs at Licence Appeal Tribunal (LAT) hearings if the other party acts irrationally or needlesslystalling the proceedings, said Ottawa personal injury lawyer, Najma Rashid.

Rashid, partner with Howard Yegendorf & Associates LLP, illustrates her point using two LAT decisions where the losing party was awarded costs.

In the first case, a man who sustained injuries in two auto accidents asked to be declared “catastrophically impaired”, making him entitled to enhanced benefits from his insurance company.

An agreement was reached where both parties would address causation by using written submissions limited to fourpages limit andto be completed within a week, according to the adjudicator.

While the injured man’s counsel met the deadline and provided the documentation within the stipulated time, the insurance company missed both the deadline and requested for more time with a larger submission limit.

“The respondent insurance company kept going back to the tribunal for extensions, which issued six orders,” said Rashid in a report, noting the final submissions by the insurance company on causation tripled the amount that was initially authorized.

After ruling that the injured man was deemed not catastrophically impaired, but nevertheless, the adjudicator ruled that he was entitled to $1,500 in costs since the respondent’s continuous delays were “unreasonable”. Especially, since it was the respondent’s insurance company that hadeven suggested and agreed to the previous timeline and the four-page limit on submissions.

“It caused [the applicant] — who is seriously impaired — a delay in receiving a decision by six months,” states the judgment.

The adjudicator added that he did not “find that [the insurance company’s] acts were malicious or with any intention to harm … it’s the cumulative effect of many small actions regarding the submissions — coming from one party — that triggers the rule’s high standard.”

According to the judgment, Rule 19 of the LAT allows costs to be awarded to the ‘failed’ party if the opposing party acts “unreasonably, frivolously, vexatiously or in bad faith” during the proceedings.

Costs are typically hard to obtain during LAT proceedings; therefore, this clause allows for some level of justice to be retained regardless of the outcome.

“Because costs are so hard to get at LAT proceedings, this is an access-to-justice issue,” said Rashidexplaining that in LAT hearings, costs are usually tied to conduct rather than the outcome.

“There aren’t too many decisions that I’m aware of where costs have been awarded.”

In the second case cited by Rashid, it involved a woman who had applied to her employer’s insurance provider for income replacement benefits (IRB) after suffering a major motor vehicle accident while she was on maternity leave.

In her case, the complicating factor was the fact that she was on maternity leave when the accident occurred. Therefore, she was receiving both top-up from her employer and Employment Insurance maternity leave benefits (EI), meaning her total income at the time the accident occurred was similar to her income when she was working full-time.

“The legal issues were whether she was entitled to income replacement benefits and if the insurance company can deduct 70 per cent of her EI benefits from the income replacement benefits,” said Rashid.

While preparing for the hearing, the woman arranged for two doctors to be on standby to render testimonies over the phone about her condition, read the judgment, but the insurance company suddenly accepted that she was entitled to income replacement benefitson the morning of the hearing,

The adjudicator awarded the woman $1,000, after repeating that he’s permitted to assign costs if a party acted “unreasonably, frivolously, vexatiously, or in bad faith” during the proceeding. This point to the fact that she had to prepare her medical witnesses to testify, and alsoprepare herself to argue the issue of entitlement to income replacement benefits, when the only problem was whether the respondent insurance company was entitled to deduct her EI from the IRB itself.

“The question of the amounts to be deducted from the income replacement benefit was entirely a legal issue best addressed by an agreed statement of facts and written submissions. An in-person hearing was unnecessary in this case,” wrote the adjudicator in the judgment.

Though the woman lost the case after the hearing, she was still awarded a cost on the same grounds as the previous man.

“She lost, but given that she was awarded $1,000, that does send a message,” noted Rashid. “In both cases, the amount of the costs is modest, but both are commentaries on the conduct of insurance companies that could attract costs even in a situation where an applicant is unsuccessful.”

Insurance companies are guilty of not filing responses to applications or case conferences in a timely manner, says Rashid, giving room for instances like the aforementioned.

“I have many files where a matter is delayed because of a slow response from the insurance company, so I think judgments like these do deliver a message,” she said.

“The LAT is already backlogged, so unnecessary delays can have a devastating impact on injured plaintiffs who are denied benefits.”