The License Appeal Tribunal (the LAT) has found that an insurer’s failure to comply with a production Order from the Tribunal is unreasonable conduct and must be deterred. In B.F. v. Wawanesa Mutual Insurance Company, 2017 CanLII 9821 (ON LAT), an adjudicator made a costs Order against Wawanesa following its failure to produce documents set out in the case conference Order for productions.

The case conference was held on September 22, 2016 with both parties present. It was Ordered at that time that productions be exchanged by October 25, 2015 with the consent of the parties. Counsel for the Applicant wrote to counsel for Wawanesa twice reminding him of the productions Order and impending deadline. When Wawanesa did not produce the documents in compliance with the Order, Applicant’s counsel requested a second Order as well as an extension of time for submissions and costs.

Counsel for Wawanesa argued that he had requested the documents from his client and would forward them to the Applicant when received, but that the conduct had not been unreasonable such as to attract an award of costs against his client.

There are very stringent rules which deal with when a party to a proceeding is entitled to costs.

Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure:

a. “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.”

Under the definitions, rule 2.17 defines the proceeding, as “the entire Tribunal process from the start of an appeal to the time a matter is finally resolved.”

Under s. 17.1 of the Statutory Powers and Procedure Act a Tribunal may “order a party to pay all or part of another’s party’s costs in a proceeding” if the “conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith…”.

In making the cost award in the amount of $250, the adjudicator found that the respondent’s conduct had been unreasonable and interfered with the Tribunal’s capacity to maintain an efficient hearing.

The take away from this case is that both insurer’s and claimant’s need to be prepared to comply with Tribunal Orders in a timely manner in order to avoid a finding of unreasonable conduct. Any production requests set out in the LAT Application or Response should be worked on even in advance of the case conference especially in light of the fact that certain productions can take several weeks or even months to secure.