Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal
Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3
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Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Tribunal d'appel en matière de permis
Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2
Tél. : 416 314-4260
1 800 255-2214
ATS : 416 916-0548
1 844 403-5906
Téléc. : 416 325-1060
1 844 618-2566
Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
Date: December 22, 2017
File: 17-002762/AABS
Case Name: L.D. v. Gore Mutual Insurance Company
Written Submissions By:
For the Applicants: Sylvia Guirguis and Eric Winkworth, Counsel
For the Respondent: Arthur Camporese, Counsel
OVERVIEW
This request for reconsideration concerns the Tribunal’s case conference order of September 18, 2017 (the “Order”). The Order sets out the parties’ disclosure obligations in advance of the Tribunal’s hearing of this application under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”). The applicant, L.D., takes issue with the Order.
She makes two main submissions. First, she submits that the Tribunal failed to order, on consent, that the respondent, Gore Mutual Insurance Company (“Gore”), disclose certain documents related to its adjustment of her claim. Second, she takes issue with the disclosure that she was ordered to produce, namely various medical records from one year pre-accident to present, along with her accident benefits file from a previous accident. She requests that I set aside the Order to allow for further submissions on her disclosure obligations.
For the reasons that follow, I vary the Order to include the disclosure that Gore consented to provide. I otherwise dismiss the applicant’s request for reconsideration.
ANALYSIS
- Rule 18.1 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”) states that I may reconsider a decision of the Tribunal on the request of a party or on my own initiative. The grounds for granting a request for reconsideration are set out in Rule 18.2:
(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.
Limitation period
As a preliminary matter, Gore submits that the Tribunal lacks jurisdiction to determine this reconsideration since D.L. submitted her request for reconsideration after the 21-day time limit set out in Rule 18.1.
The Tribunal received her request for reconsideration on October 11, 2017, one day after the end of the 21-day day period for requesting reconsideration. Gore also states that it has not received any request for reconsideration dated October 11, 2017. Gore had notice of the request at least as of October 13, 2017, when the Tribunal wrote to the parties requesting submissions.
The late filing of a request for reconsideration is not a jurisdictional issue. The Tribunal has discretion under Rule 3.1 to vary its rules to ensure “efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.” As Gore has agreed that it consented to certain disclosure items that were not listed in the Order, this request should be decided on its merits. A delay of, at most, three days causes negligible, if any, prejudice to Gore in the circumstances. Thus, this is an appropriate case to vary the 21-day deadline established in Rule 18.1.
Gore’s disclosure obligation
- L.D. states that the Order omits from Gore’s disclosure obligation the following items that Gore consented to produce:
i. A list of all information withheld from the production of Adjuster’s notes with reasons;
ii. All third-party communication with the insurer examination (“IE”) regulated health professionals; and
iii. The complete clinical notes and records of all IE regulated health professionals.
- Gore acknowledges that it consented to produce additional documents that were not listed in the Order. More specifically, it agrees that it consented to produce the following:
i. Adjuster log notes up to the date of the application to the Tribunal, redacted for reserves and privilege;
ii. The communications between the insurer and the IE assessors;
iii. To request and produce, if available, the notes of the IE assessors, which include Dr. Weisleder, OT Ranu Singh, Dr. Semerdijan, Dr. Walsh, and Dr. Czok.
- The Order already requires Gore to produce its adjuster’s log notes, which may be redacted for privileged information or information relating to insurance reserves. Therefore, there is no need to vary the Order to require production of that item. With respect to the other two items, I am satisfied that the omission of the disclosure consented to is an error of fact that satisfies Rule 18.1(b). I vary the Order to require the respondent, on consent, to:
produce the communications between the respondent and the IE assessors, which include Dr. Weisleder, OT Ranu Singh, Dr. Semerdijan, Dr. Walsh, and Dr. Czok, relating to the applicant’s file; and
request and produce, if available, the notes of the IE assessors relating to the applicant’s file.
As Gore has indicated that it intends to disclose these documents in any event, I make no change to the disclosure deadline.
I note that is not necessary to request reconsideration under Rule 18.1 in order to vary a case conference order to include items on consent that were inadvertently omitted. The normal process would be to request that the Tribunal vary the Order under Rule 17. However, I have dealt with this issue on reconsideration in this case in order to promote the efficient resolution of the issue.
L.D.’s disclosure obligation
- L.D. makes two submissions to support her request for a new hearing to determine her disclosure obligation. First, she submits that there was a breach of procedural fairness. Second, she submits that the Tribunal made a significant error of law such that the Tribunal would likely have reached a different decision.
Procedural fairness
I am not satisfied that the Tribunal violated the rules of procedural fairness or natural justice.
L.D. submits that she was not given the opportunity to prepare submissions on the disclosure orders requested by the respondent, as she was given no indication that disclosure orders would be requested at the case conference. She notes that there was no mention of disclosure in the Tribunal’s order adjourning the case conference to August 28, 2017, or in the respondent’s case conference summary. She further submits that the disclosure ordered includes documents of a highly sensitive nature, requiring her to incur significant legal costs, and that it is overly broad and irrelevant to the central issue in dispute, namely her entitlement to attendant care benefits (“ACBs”).
Gore submits that L.D. knew or ought to have known that disclosure would be discussed at the case conference. Rule 14.2(e) states that disclosure can be discussed at a case conference. Additionally, L.D. received Gore’s case conference summary, which lists 15 key documents that it was seeking, two months in advance of the case conference. Gore submits that if L.D. felt ill-prepared to deal with the issue of disclosure at the case conference, then the appropriate time to raise that concern was at the case conference, not after the fact.
I agree with Gore. L.D. had sufficient notice that the parties’ disclosure would be discussed at the case conference. It was also open to her to request, whether at or before the case conference, that disclosure be determined at a later date. She did not.
Rule 14.2 of the Tribunal’s Rules sets out the matters that may be considered at a case conference, including 14.2(e): “Disclosure and the exchange of documents, including witness statements and expert reports.” Rule 20.4, which sets out the requirements of an AABS Case Conference Summary, requires parties to include a “list of key documents that the party intends to seek from other parties pursuant to the disclosure rules set out at Rule 9.” L.D. also received a Notice of Case Conference that stated that the purposes of the case conference included allowing the parties to “disclose and exchange information” and to “direct how the hearing will be organized and any other steps that must occur before the hearing.” Further, each party included in their Case Conference Summary a list of the documents that they were seeking from the other. It is clear that L.D. was on notice that disclosure of documents would be discussed at the case conference.
With respect to L.D.’s submission that the disclosure ordered is sensitive, overly broad and irrelevant, I would remind her that a request for reconsideration is not a second opportunity to make submissions on the appropriate scope of disclosure.
I am not satisfied that a breach of procedural fairness occurred. Error of Law
The applicant submits that the adjudicator at the case conference incorrectly stated the test for entitlement to ACBs. In doing so, she appears to argue that the Tribunal’s misstatement of the applicable test for her entitlement to ACBs means that the disclosure she was ordered to produce is irrelevant.
She submits that the adjudicator mistakenly stated that the test for entitlement to ACBs is whether “she is unable to carry out any of a wide range of activities of daily living.” The applicant submits that the correct test for entitlement to ACBs is found in s. 14 of the Schedule, which states only that the injury should not be a minor injury. She submits that the appropriate test is whether she has a “pre-existing medical condition preventing her from maximal recovery under the $3,500 limit or if she has suffered an injury that is not classified as a minor injury.”
Gore submits that there is no evidence of the alleged misstatement. Gore submits that, regardless, there is no evidence that the adjudicator based his production order on the alleged misstatement of the test. Gore further submits that the disclosure order was reasonable.
I am not satisfied that the Tribunal made a significant error of law such that it would likely have reached a different decision.
It is clear that the Tribunal stated the test as alleged by L.D. Although the statement was not included in the Order itself, it was included in reasons for the Order as stated in the Case Conference Report (the “Report”) dated September 18, 2017. The Report stated:
The issue in dispute in this case involves the applicant’s entitlement to attendant care benefits. She is entitled to such benefits if she establishes that she is unable to carry out any of a wide range of the activities of daily living. The state of the applicant’s health and abilities both before and after the accident are in question. I find that all of the requested documents are relevant to the issue in dispute and order the applicant to disclose them no later than December 29, 2017.
- L.D. is correct that s. 14 of the Schedule states that ACBs are not available for minor injuries. However, the test for entitlement to ACBs is set out in s. 19(1) of the Schedule:
Attendant care benefit
- (1) Attendant care benefits shall pay for all reasonable and necessary expenses,
(a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Long-Term Care Homes Act, 2007 or a chronic care hospital; and
(b) that, to the extent any of the expenses referred to in clause (a) are for transportation, are authorized transportation expenses for which no medical benefit described in clause 15 (1) (g) is payable, no rehabilitation benefit described in clause 16 (3) (k) is payable and no amount is payable under subsection 25 (4).
In order to determine entitlement to ACBs under s. 19, the Tribunal must be satisfied that the ACBs are “reasonable and necessary” and that they are incurred “as a result of the accident”. In order to determine whether the ACBs claimed are “reasonable and necessary”, the Tribunal must necessarily determine whether L.D. is unable to carry out certain activities of daily living. Therefore, I do not find that the impugned statement contains a significant error of law.
Even under the test proposed by the applicant – whether she has a “pre-existing medical condition preventing her from maximal recovery under the $3,500 limit” for minor injuries – the documents ordered appear to be relevant, as they relate to her medical records from one year pre-accident to the present.
I am therefore not satisfied that the Tribunal made a significant error of law.
New Evidence
- The applicant also submits that had she been aware of the fact that disclosure would be discussed at the case conference, she would have submitted further evidence supporting her need for the respondent’s insurance examiner’s clinical notes and records, and payment records. As the respondent has consented to produce these documents, this new evidence would not have affected the result. In any event, the applicant had sufficient notice that disclosure would be discussed at the case conference. I am not satisfied that the applicant could not have reasonably obtained this new evidence earlier.
ORDER
- For the reasons set out above, I vary the Order to require the respondent, on consent, to:
produce the communications between the respondent and the IE assessors, which include Dr. Weisleder, OT Ranu Singh, Dr. Semerdijan, Dr. Walsh, and Dr. Czok, relating to the applicant’s file; and
request and produce, if available, the notes of the IE assessors relating to the applicant’s file.
- I dismiss the remainder of the applicant’s request for reconsideration.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario Released: December 22, 2017