RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
Date: October 3, 2016
File: 16-000723/AABS
Case Name: G.P. v. Cumis General Insurance
Written Submissions:
For the Applicant: Robert Seredynski, Articling Student, Clarke Law
For the Respondent: Ms. Sharla Bandoquillo, Zarek Taylor Grossman Hanrahan LLP
Overview
On August 30, 2016, the Licence Appeal Tribunal (the “Tribunal”) held a case conference in the above noted matter and issued an Order in respect of that case conference on September 21, 2016.
On August 29, 2016, the day before the scheduled case conference, the applicant submitted a request to the Tribunal to add the issue of catastrophic determination to the hearing. This August 29, 2016 request letter was not before the case conference adjudicator and the applicant did not specifically raise the request during the case conference.
During the case conference the applicant advised that she had submitted an application for catastrophic determination (OCF-19) to the respondent and that the respondent was in the process of conducting their assessments. The applicant requested an adjournment of the matter until the conclusion of the respondent’s assessment of catastrophic determination. The adjudicator denied the adjournment and ordered the matter to proceed by way of written submissions scheduled for October 24, 2016.
The adjudicator addressed the August 29, 2016 request to add the issue of catastrophic determination (CAT) to the issues in dispute, in a separate order so issued on September 21, 2016. The adjudicator denied the request to add the issue on the basis that the respondent had not yet denied the catastrophic determination and as such, there was no issue before the Tribunal.
On September 13, 2016, the Applicant submitted a second Application by an Injured Person listing the issue of catastrophic impairment and a request that this application be combined with the previous.
Reconsideration Request
- On September 20, 2016 the applicant submitted a request for reconsideration seeking the following relief:
a) Stay the written proceedings scheduled for October 24, 2016;
b) Add the issue of catastrophic impairment to the issues in dispute;
c) Adjourn the scheduled written hearing until after the insurer’s examination to determine whether the applicant meets the CAT definition; and
d) Convert the format of the hearing from written to in-person.
Decision
- For the reasons that follow, I grant the applicant’s request for reconsideration and set out the specific relief in my order below.
Discussion and Reasons
Reconsideration Criteria
- The criteria for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, which states that the Executive Chair will not grant a request for reconsideration unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
Rule 18.2(d)
I have reviewed the applicant’s request for reconsideration and the respondent’s response. I find that there was evidence not before the adjudicator that would have affected the result.
The adjudicator did not have the applicant’s August 29, 2016 request letter seeking to add the issue of CAT before her at the case conference. Following the case conference, the adjudicator was provided with the applicant’s request to add the issue. However, she did not have the respondent’s June 15, 2016 letter responding to the applicant’s OCF-19.
The June 15, 2016 letter confirmed that CUMIS had received the applicant’s OCF-19 and stated, “… we are unable to accept that your injuries meet the catastrophic definition.” The letter advises that further medical assessments are necessary to determine whether her impairments meet the definition of catastrophic impairment.
I find that the fact the adjudicator did not have the June 15, 2016 letter as evidence before her in determining whether to add the CAT issue meets criteria (d) of Rule 18.2 above.
The adjudicator’s September 21, 2016 order denied the request to add the CAT issue on the basis that the respondent had not yet denied the catastrophic determination and as such, there was no issue before the Tribunal. I find that had the adjudicator had the respondent’s June 15, 2016 letter before her, it would have affected the result.
I agree with the applicant’s submission that in regards to the circumstances of this case, an adjournment of the matter in order to deal with all of the potential issues at one time will be more efficient, proportional and timely.
Granting a brief adjournment and scheduling a resumption of the case conference after the completion of the respondent’s CAT assessments will enable the Tribunal to deal efficiently with all of the potential issues in dispute, prevent multiple proceedings and potential inconsistent results.
Case Conference Resumption
- The purpose of the resumed case conference will be as follows:
i. Discuss the results of the respondent’s CAT assessments;
ii. Clarify the remaining issues in dispute; and
iii. Determine the format of any hearing that may be required based on the issues in dispute.
Decision and Order
- I grant the applicant’s request for reconsideration and order the following:
i. A stay of the written hearing scheduled for October 24, 2016;
ii. A resumption of the case conference to mid-December 2016. The adjudicator at that resumed case conference will deal with both of the applications at that time and deal with all issues that remain in dispute and the format of any future hearing.
- Based on the above, I therefore grant the applicant’s request for reconsideration.
Linda P. Lamoureux Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: October 3, 2016