Tribunal File Number: 16-001916/AABS
Case Name: 16-001916 v Allstate Insurance Company of Canada
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O 1990, c I.8., in relation to statutory accident benefits
Between:
T. S.
Applicant
and
Allstate Insurance Company of Canada
Respondent
Preliminary Motion Hearing
Adjudicator: Chloe Lester
Appearances:
Applicant: T. S.
Counsel for the Applicant: Stefan Juzkiw
Representative for the Respondent: Wanda Rumsum (not present)
Counsel for the Respondent: Jennifer Griffiths
Held by Teleconference: November 16, 2016
[1]. The applicant was injured in an accident on November 21, 2001, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the ''Schedule'').
[2]. The applicant brought an application before the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) and sought benefits and determinations on numerous issues. A case conference was held on November 3, 2016. The applicant and her counsel were not present for the case conference. The respondent moved to dismiss the application claiming these issues had already been heard by the Financial Services Commission of Ontario (FSCO) and the Tribunal does not have jurisdiction to re-hear these issues in dispute.
ISSUES
[3]. The issues in dispute were identified and agreed to as follows:
a. Does the Licence Appeal Tribunal have jurisdiction to decide the following issues in dispute as the respondent claims that they have been already been decided at the Financial Services Commission of Ontario?
I. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from November 8, 2013 until July 31, 2016?
II. Is the applicant entitled to a caregiver benefit in the amount of $1,714.64 per week from November 25, 2003 until July 15, 2016?
III. Is the applicant entitled to an attendant care benefit in the amount of $7,372.96 per month from December 21, 2011 until June 30, 2016?
IV. Is the applicant entitled to a medical benefit in the amount of $1,000,000.00?
V. Is the applicant entitled to a medical benefit for psychological services in the amount of $10,000,000.00?
VI. Is the applicant entitled to a medical benefit in the amount of $1,000,000.00 for social rehabilitation counselling?
VII. Is the applicant entitled to a rehabilitation benefit in the amount of $100,000.00?
VIII. Is the applicant entitled to a visitor expense in the amount of $9,000.00?
IX. Is the applicant entitled to a housekeeping and home maintenance benefit in the amount of $1,000,000.00 from November 6, 2002 until July 31, 2016?
[4]. Reviewing the application prior to considering the motion to dismiss without a hearing, I noticed that the applicant had checked off the box indicating that she was mentally incapable and that she required accommodation. No further details were provided, and the Tribunal’s Representing Mentally Incapable Persons form was not filled out.
[5]. At the beginning of the preliminary motion hearing, I inquired whether the applicant is mentally incapable and what accommodation she required. Counsel for the applicant indicated that they had not completed an assessment to verify the applicant’s capacity and that he had some concerns.
[6]. Respondent’s counsel submitted that absent reasonable grounds to believe otherwise, an adult party is presumed to have capacity.
[7]. During the proceedings the applicant was an active participant, at times speaking for herself and answering questions in a coherent and knowledgeable way. I see no reasonable grounds to displace the presumption she has capacity.
[8]. Counsel for the applicant requested the Tribunal adjourn today’s preliminary motion hearing as he was unclear whether this motion was proceeding today. Counsel received a phone call from the Tribunal a few days prior indicating that the preliminary motion hearing date would be adjourned, and he only received the order a few days before that. Counsel for the applicant then received a notice of hearing the day before the hearing, indicating that the preliminary motion hearing would be proceeding. Counsel argued the principles of natural justice would be breached if the motion is to proceed as he had not had sufficient notice or time to prepare.
[9]. Counsel for the respondent argued that the preliminary motion hearing should proceed as letters from her firm and phone calls had been made to the applicant’s counsel and he was aware of the date. As the respondent had incurred costs to prepare for this motion, and the issues in dispute had been already litigated in another forum, it is their position that the request should be denied and the matter should proceed. The respondent argued that the timing of the application was within the applicant’s control and that she has not filed any documents to support her claim. The respondent submits that applicant’s counsel has only now raised the question of the applicant’s capacity, with no accompanying documentation. If the matter is adjourned, the respondent will seek costs.
[10]. Based on the submissions of the parties, I decided to adjourn the matter until December 6, 2016 at 9:00 a.m. when I will hear the submissions on costs in addition to the preliminary motion to dismiss. The Tribunal erred by informing the applicant the matter was not going to proceed today, contributing to the applicant being unprepared. The respondent is not prejudiced by the adjournment.
[11]. I then asked the parties if they would like to participate in settlement discussions, with the understanding that I remain seized of the matters for the preliminary motion hearing on December 6, 2016.
[12]. The applicant and her counsel discussed whether they wanted to participate in settlement discussions. They came back on the teleconference line approximately 15 minutes later and the applicant expressed that she would no longer like Mr. Juzkiw to represent her. The applicant requested a two month adjournment of the December 6, 2016 date so that she could retain new counsel, and an in-person hearing.
[13]. I confirmed with the applicant that she understood the potential consequences of her decision, and am satisfied that she does.
[14]. I granted the adjournment of the preliminary motion hearing until January 16, 2017 at 11:00 a.m. for an in-person hearing in Toronto on the understanding that the applicant is being given sufficient time to seek new counsel, and that she and her counsel will be prepared to proceed on that date.
[15]. The respondent noted they may seek costs, and agreed to bring any motion for costs by December 15, 2016. The applicant will have 7 days to reply to the motion if brought, and I will hear any submissions on January 16, 2017 at 11:00 a.m.
[16]. All required documents for the preliminary motion hearing shall be exchanged between the parties and sent into the Tribunal 10 days prior to the hearing.
[17]. Clinical notes and records need not be submitted in their entirety. The parties should refer in their submissions only to those parts or pages that are relevant and necessary to support their position.
[18]. The documents filed by the parties for the purposes of the case conference will not be before the Adjudicator hearing this matter. The evidence which the parties wish to reply upon for the purposes of the hearing will have to be resubmitted.
[19]. All documents that the parties will be relying upon as evidence shall be submitted with the submissions on the above due date. No additional documents or records may be filed in the application without the permission of the Tribunal.
[20]. If the parties reach an agreement on the issue(s) in dispute prior to the scheduled hearing date, they shall immediately advise the Tribunal and file a notice of withdrawal.
[21]. The Tribunal will send a notice of hearing shortly.
Released: December 28, 2016
Chloe Lester Adjudicator