Tribunal File Number: 16-002636/AABS
Case Name: 16-002636 v The Dominion of Canada General Insurance Company
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
M. Y. Y.
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
REASONS FOR DECISION AND ORDER ON A MOTION
Order made by: Heather Trojek, Vice Chair
INTRODUCTION
Counsel for the applicant filed a motion with the Tribunal on February 8, 2017, requesting that the hearing in this matter be combined with the hearing in application 16-002640/AABS and that both matters be heard together on March 27, 2017 and March 28, 2017. The hearings in question are for two applicants who were involved in the same accident. The applicant’s motion is dismissed; the two hearings will be conducted seperately.
Respondent’s counsel filed a Response to the motion on February 9, 2017. The respondent does not consent to the files being combined and requested an award for costs against the applicant.
The applicant’s motion to combine the hearings is dismissed. No costs will be awarded to the respondent. These are the reasons for my decisions.
BACKGROUND
A case conference in this matter took place on November 28, 2016. With the consent of the parties the adjudicator ordered that a two day in-person hearing take place on March 13, 2017 and March 14, 2017. There are a total of eight issues in dispute to be decided in this file. The parties intend to call three witnesses each.
The case conference in the other matter (File 16-002460/AABS) took place on November 29, 2016. With the consent of the parties the adjudicator ordered that a two day in-person hearing take place on March 27, 2017 and March 28, 2017. There are a total of nineteen issues in dispute to be decided in this file. The parties intend to call three witnesses each.
The case conferences in both matters were conducted by different adjudicators. Counsel for the parties attended both case conferences. There is no indication in the adjudicators’ case conference reports or orders that applicant’s ccounsel requested that these matters be heard together.
The two matters share only one witness in common, a chiropractor that is being called by the applicants.
The respondent is calling different witnesses at each hearing.
SUBMISSIONS
Applicant’s counsel submits that it would be more cost-efficient and expeditious to have the matters heard together.
Respondent’s counsel argues that these are multi-issue hearings and it would be procedurally unfair to limit the time to one day each as opposed to the two day hearings that were agreed upon at the case conferences.
ANALYSIS AND DECISION
Rule 20.5 of the Tribunal’s Rules of Practice and Procedure allows for hearings to be combined with the consent of the parties. In this case the respondent does not consent as evidenced in its response to the motion.
The hearings in question deal with two different applicants. I find no value in terms of fairness, efficacy, or cost effectiveness in having these two matters heard together.
I find each hearing should be conducted separately because there are numerous issues to be determined in each matter. Holding separate hearings will also protect the privacy of the applicants.
I am not persuaded by the submissions made by applicant’s counsel in terms of the cost effectiveness of combining both hearings. There is only one witness that the applicants are calling for both hearings; the respondent is calling different witnesses for each.
The lateness of the applicant’s request to combine the hearings also concerns me. Counsel agreed in the case conferences that were held in late November 2016 that these hearings would be held separately. To wait more than two months to file a motion to combine the hearings is not efficient or prudent.
If applicant’s counsel wanted the hearings combined, the appropriate time to make the request would have been at or immediately following the case conferences. In addition to settlement, one of the primary purposes of a case conference is to determine the form and length of hearings. Applicant’s counsel fails to explain why he did not make the motion to combine the hearings in a timelier manner.
At the case conferences, the parties agreed that the most appropriate way to ensure a fair and just hearing in these matters was through in-person hearings. The parties estimated that each hearing would require two full days. In his motion, applicant’s counsel fails to provide sufficient reasoning as why both hearings could now be heard in two days instead of four.
COSTS AND DECISION
Rule 19.1 states that a party may make a cost request to the Tribunal where it believes that the other party has acted “unreasonably, frivolously, vexatiously, or in bad faith”. Although motions are not encouraged by the Tribunal and should not be considered routine, I do not find the applicant’s request to combine the hearings and file a motion with Tribunal to be “unreasonable” to the extent that an award of cost is warranted. As such, I decline to make an order for costs.
Accordingly, the applicant’s motion for a combined hearing is dismissed and no award for cost will be made against the applicant.
Released: February 13, 2017
___________________________
Heather Trojek, Vice Chair