On April 1, 2016, all disputes for accident benefits from motor vehicle accidents in Ontario were moved into a new system through the License and Appeals Tribunal (LAT) through the Ministry of the Attorney General. With a new system came new rules on the dispute resolution process. One of the most concerning is Rule 19, which deals with costs.
It is a common legal principle in civil law that the party that loses a case must pay at least some of the winner’s costs, which can include legal fees and disbursements (things that have been paid to third parties to advance the matter). This is based on the tenant of access to justice, which allows anyone regardless of economic resources to advance a claim against a party that has wronged him or her. In the context of the accident benefits system, it means that an injured person can advance a dispute against an insurance company and, if they are successful, their legal costs will be paid. They are not, therefore, hindered in advancing a claim because they cannot afford to do so.
Rule 19 of the LAT rules states that, “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” A recent LAT decision with respect to this rule indicates that the unreasonable, frivolous or vexatious actions of a party are only within the context of the actual dispute resolution (LAT) proceeding.
What this means is that, even with the most egregious behaviour of an insurance company against a financially strapped injured person, that person cannot be reimbursed for the legal costs needed to dispute the insurance company’s decision, unless the insurer did not behave themselves within the LAT proceedings. It is as if all of the actions of an insurance company outside of the proceedings don’t matter.
While an injured person could claim a special award as a punitive measure against an insurer for unreasonable conduct, this is limited to up to 50% in addition to whatever amount is awarded for the most egregious conduct. The injured party cannot be reimbursed for the $100.00 LAT application fee, any medical reports or documents, which support their claim, or the costs of having a legal representative to stand up to the insurer on their behalf.
For example, let’s say that an insurance company denied payment of income replacement benefits to an injured person and that the insurance company’s denial was totally unreasonable. The injured person must pay a $100.00 application fee to dispute the denial. In most cases, given the complexity of accident benefits legislation, they must retain a legal representative. They go through the LAT process. The arbitrator ultimately agrees that the insurance company was unreasonable in denying payment of the income replacement benefit and orders it to be paid. As long as the insurance company behaved themselves in the proceedings they do not have to reimburse the injured person for the application fee, all supporting documentation supporting their claim (which could be in the thousands of dollars), or the costs for retaining the legal representative. The injured person could, in fact, be better off not even disputing the insurance company’s denial.
In our view, this is totally unjust and unfair.
At Smitiuch Injury Law we fully intend on appealing any adverse decisions on costs and will raise the access to justice principle in order to declare the current Rule 19 void.
 16-000041 v Intact Insurance Company, 2016 CanLII 78333 (ON LAT)