By Kathleen O’Hara and Heather Lindsay
In the recent Motion Order of LAT File No. 18-011887/AABS, the LAT concluded that an insurer can resist the unilateral withdrawal of a LAT Application when it included a live issue in the proceeding that has yet to be decided. Further, administrative action and file closure letters are not orders and can be challenged.
On this note, it is important for the insurer to include all potential issues, such as the repayment of benefits or costs, in its Response to an Application. This inclusion gives the insurer the right to have these issues decided by the LAT, even if the applicant chooses to withdraw.
In its LAT Response, the insurer requested repayment of benefits paid to the applicant during the course of his accident benefits claim. After a series of case conferences, and the parties being notified that the LAT would be issuing a Reconsideration decision in favour of the insurer, the applicant withdrew his Application. The insurer advised the LAT in writing that it intended to maintain its claim for repayment. However, the filed was later closed administratively by the LAT, with both parties receiving an administrative closure letter.
The insurer brought a motion for an Order that that LAT Application remain open, as it did not consent to the closure of the file.
The insurer’s motion was granted and an Order was made that the LAT Application remained open. Vice Chair Hunter noted that it is LAT practice that where a file has been administratively closed, it only requires a request by a party to re-open it. The case management officer who administratively closed the LAT Application did not appreciate that the insurer also had a claim in the Application.
Unilateral Withdrawals and Costs
The issue of unilateral withdrawals and administrative closure letters often arises in the context of a party seeking costs. One party will withdraw its Application, and the other will argue the file must remain open in order to deal with the costs issue.
Reconsideration in 16-000474 v Aviva 2016 CanLII 105250 (ON LAT)
The applicant submitted a LAT Application. The insurer made a request for a dismissal with costs, as the applicant failed to produce required documents. Two months later, the applicant submitted a Notice of Withdrawal. After the withdrawal, the insurer further asserted its claim for costs, which the LAT does not appear to have considered initially. The parties were sent an administrative closure letter. The insurer requested Reconsideration, which was allowed. The Vice Chair held that the failure of the LAT to respond to the request for costs, which had been filed prior to the withdrawal, was a breach of procedural fairness. The matter was sent back to an adjudicator for a determination regarding costs; ultimately, the adjudicator hearing the motion ordered no costs.
Reconsideration in 18-000935 v Aviva, 2019 CanLII 58159 (ON LAT)
This matter proceeded to a hearing in writing. After the insurer filed its responding submissions, the applicant withdrew his Application. The LAT subsequently issued an administrative closure letter to the parties. The insurer had requested costs in connection with the proceedings prior to the withdrawal. The insurer requested Reconsideration, which was allowed by the Vice Chair, who held that the Tribunal’s decision to close the file without adjudicating the costs issue violated the rules of natural justice and procedural fairness. However, in the end, the Vice Chair found that the insurer had not met the high onus and did not award any costs.
These decisions highlight that the unilateral withdrawal of a LAT Application and the administrative closure of a case does not dispose of an issue raised by an opposing party. Based on the principles of procedural fairness and natural justice, an insurer is still able to have the LAT decide issues that were raised in the Response or the proceeding. Administrative closures can be reversed on request. One key element appears to be that the party must raise the issue prior to closure. Failure to raise or include an issue may result in the insurer being barred from having it heard by the LAT.
Kathleen is SBA’s Northern Ontario delegate. Despite growing up in the great white north, Kathleen is an avid summer athlete. When she isn’t finishing triathlons or trying to hit a ball out of a bunker, Kathleen somehow manages to run our SIU team.