The recent Thompson v. Intact
Insurance1 decision of the License Appeal Tribunal
(the "Tribunal") confirmed the Tribunal's
jurisdiction over costs on an issue resolved in advance of the case
conference. The Tribunal looked to both the LAT Rules of
Practice and Procedure2 (the "LAT Rules")
and the Statutory Powers and Procedure Act3
(the "SPPA") for their authority to award costs.
Mr. Thompson claimed accident benefits following his accident of
October 26, 2011. An OCF-18 for psychological services was
denied by his insurer, Intact Insurance. After an application
to the Tribunal was filed, and in advance of the case conference,
Intact agreed to pay for the disputed services following the
receipt of updated supporting records; Mr. Thompson accepted
Intact's offer and raised the issue of costs.
At the scheduled case conference parties advised the adjudicator
that they had previously agreed to settle the substantive dispute
however the issue of costs remained outstanding. A preliminary
issue hearing was scheduled which resulted in the instant
decision. The Tribunal ruled that it had jurisdiction to
consider costs despite the original dispute being settled before
the case conference.
Costs in the LAT
The SPPA s. 17.1(1) and Rule 19.1 both allow a party to make
requests to a Tribunal for its costs only where actions are
unreasonable, frivolous, vexatious or in bad faith.
The previous FSCO regime4 echoed the broad discretion
of the Superior Court in allowing costs. No negative findings
were required to justify same. Section 282(11) of the Insurance
Act could have continued discretionary costs in insurance
litigation after matters stopped being accepted by FSCO, however
its recent repeal in conjunction with Rule 19's requirement of
unfavourable conduct eliminates any ability to award costs without
Jurisdiction Where the Main Issue is Resolved
It was held that first, the costs issue must be raised in a
"proceeding" to be within the ambit of the Tribunal's
jurisdiction. The Tribunal reasoned that as a proceeding
commences on submission of the application and concludes on the
resolution of all issues in dispute between the
parties, their jurisdiction extended to the unresolved issue of
costs. Thompson accepting Intact's approval of the
treatment plan, the main issue, did not resolve the secondary issue
The issue of costs will remain outstanding where: a) there is no
withdrawal; and b) the issue of costs is associated with the main
It was not explicitly resolved whether costs need to be directly
raised to the attention of the other side prior to applying to the
Tribunal and if so, when this issue must be raised. The
wording of the decision suggests that Thompson raised the issue of
costs at the same time as he accepted the treatment plan
approval5. It is unclear whether raising costs in the
same conversation that resolves the main issues is mandatory, or
whether it may be raised subsequently so long as it is before
The Tribunal's justification of confirming jurisdiction was
that costs were related to the main issue and not a
"stand-alone issue." It is yet to be seen whether a
costs issue raised after the confirmation of settlement but before
the withdrawal of the application will be considered
Thompson v. Intact resolved the issue of the
Tribunal's ability to award costs to settled matters, but the
logistics of how this will play out in future decisions is yet to
1 Thompson v. Intact Insurance, Insurance Act,
2 April 1, 2016.
3 R.S.O. 1990, c. S.22.
4 Rule 75.2 of the FSCO's Practice Code and Section F
– Expense Regulation.
5 "Mr. Thompson accepted Intact's approval of
the treatment plan and raised another issue regarding
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