Licence Appeal Tribunal
Tribunal File Number: 16-001394/AABS
Case Name: 16-001394 v Northbridge Personal Insurance Corporation
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. P.
Applicant
and
Northbridge Personal Insurance Corporation
Respondent
Decision
Order made by: Heather Trojek, Vice Chair
Date of Decision: March 28, 2017
OVERVIEW
On March 17, 2017, the applicant filed a request to adjourn the written hearing scheduled to take place on April 24, 2017. The respondent did not consent to the adjournment.
For the reasons provided below, the applicant’s request for an adjournment of the hearing is granted. The Tribunal will book a resumption of the case conference in order to set a new hearing date and a new timetable for the filing of evidence and submissions.
BACKGROUND
The Applicant was injured in an automobile accident on January 17, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). She submitted an application to the Tribunal on July 18, 2016.
A case conference was booked for October 17, 2016. An adjournment request was granted because the applicant had to attend the funeral of a family member.
A second case conference took place on November 28, 2016. The respondent requested an adjournment in order to review an occupational therapy report, which it recently received from the applicant. The report is dated September 22, 2016. The respondent’s adjournment request was denied.
At the November 28, 2016 case conference, the respondent raised a preliminary issue that because of the two-year statutory limitation period, the applicant was barred from disputing her ongoing entitlement to non-earner benefits. A written hearing was scheduled with the consent of the parties for February 21, 2017 to determine the preliminary and substantive issues in dispute.
On January 12, 2017, the applicant asked for an adjournment of the February 21, 2017 hearing as she had been hospitalized with multiple fractures and was unable to attend an assessment needed to support her claim. The respondent opposed the adjournment. The adjournment was granted, as was the applicant’s request to resume the case conference.
The parties attended the second case conference on January 27, 2017. The preliminary issue hearing was scheduled to proceed as previously scheduled on February 21, 2017. If the preliminary issue hearing was decided in the applicant’s favor, the parties agreed that a written hearing on the substantive issues would proceed on April 24, 2017.
On February 8, 2017, the respondent withdrew its preliminary issue motion. The February 21, 2017 hearing did not proceed as the applicant’s right to dispute her entitlement to non-earner benefits was no longer an issue in dispute between the parties.
The Tribunal sent a notice of the April 24, 2017 hearing to the parties on February 22, 2017.
CURRENT ADJOURNMENT REQUEST
The applicant submitted a request to adjourn the April 24, 2017 hearing because she had sustained multiple fractures to her leg and was hospitalized. Because of her leg injury and hospitalization, she had to reschedule an assessment, which had been booked to proceed in March. The earliest date the applicant proposes for the hearing to proceed is June 20, 2017.
Respondent’s counsel wrote to the Tribunal objecting to the adjournment of the hearing. The respondent argued 1) that the applicant should have had the medical reports she intended to rely on prior to submitting her application to the Tribunal and 2) that her ongoing requests for adjournments are counter to the Tribunal’s mandate to determine disputes within a six-month period.
The applicant responded to the concerns raised by the respondent in a letter dated March 22, 2017. The applicant explains that she had an assessment booked in October 2016 that had to be cancelled in order for her to attend the funeral. She could not attend a rescheduled assessment in January 2017 because she was hospitalized due to multiple fractures in her leg. She was admitted to hospital again due to complications and underwent surgery on her leg in March 2017. The assessment that she had rescheduled to take place in March had to be cancelled due to her leg surgery and the time needed for her recovery. The applicant submits that she is not attempting to cause undue delays in the proceedings but has been unable to comply with the timelines she had previously agreed to due to unanticipated circumstances.
ANALYSIS AND REASONS
The Tribunal has an obligation to ensure a fair, just, expeditious and cost efficient determination of every case on its merits. The Tribunal’s expectation is that when a party files an application it is ready to resolve the issues in dispute or proceed to a hearing. This expectation applies to both parties. The Tribunal’s ability to meet its mandate to provide timely and expeditious hearings is thwarted when parties begin to prepare their cases only after an application is filed.
The applicant’s accident took place in January 2013. Potential entitlement to non-earner benefits begins 6 months post-accident. The respondent denied the applicant’s entitlement to non-earner benefits on May 21, 2014. The applicant had over two years, between May 2014 and July 2016 when she filed her application with the Tribunal, to obtain the medical evidence necessary to support her claim for non-earner benefits. I find that the applicant had a sufficient amount of time to obtain medical reports before her application was filed and has failed to provide a reasonable explanation of why she did not do so.
I note that the applicant also had sufficient time after her application was filed and before she had to attend a funeral in October and/or was hospitalized in December 2016 to obtain medical evidence to support her claim. This is evidenced by the fact that she obtained a report from an occupational therapist in September 2016.
In considering this adjournment request, I must balance the competing interests of the parties. The applicant seeks to obtain an additional assessment to support her case. The respondent has an interest in a timely resolution of the dispute without ongoing delays to allow the applicant to obtain new assessments and potentially precipitate the need for it to obtain responding assessments of its own and potentially incur additional legal costs.
I find based on the information before me, that the applicant’s right to present her case is outweighed by any costs that the respondent may incur because of additional delay. Moreover, I am unable to find that the applicant has intentionally tried to prolong or delay the proceedings. The applicant confirms that she had an assessment booked in October 2016 and had it rebooked for January 2017. She rebooked the January assessment to take place in March. The March assessment had to be cancelled because of her leg surgery.
Since filing her application the applicant has had to attend the funeral of a family member; she fractured her leg and was then hospitalized; she was released and re-admitted for surgery on her leg. I agree with applicant’s counsel and find that these are exceptional and uncontemplated circumstances that have caused the delay in this matter moving forward in a more timely fashion. I find that due to the unusual circumstances of this case, that it would be unduly prejudicial to the applicant if an adjournment was not granted for her to obtain the assessment she believes is needed to support her case.
Rule 16.1 of the Tribunal’s Rules of Practice and Procedure states that requests for an adjournment of a hearing must include at least three alternative dates within 30 days of the hearing. The first available date for the hearing proposed by the applicant is June 20, 2017, a month beyond the 30-day time limit. The other dates provided are significantly longer.
I note that the applicant’s adjournment request fails to indicate when her assessment has been rescheduled to or a date by which the report would be provided to the respondent.
In an attempt to address the concerns raised by the respondent and ensure that the matter proceeds to a hearing in a timely manner, I will case manage this file until it proceeds to a hearing. There will be another case conference before me to set a date for a hearing and set a new timetable for the filing of evidence and submissions. The Tribunal will contact the parties to set a date for the resumption and will send a formal notice to the parties.
If the parties reach an agreement on the issues in dispute prior to the scheduled hearing date, the Applicant shall immediately advise the Tribunal in writing.
Nothing in this Order limits any other requirement under the Insurance Act, or the Tribunal Rules of Practice and Procedure.
Date of Issue: March 28, 2017
Heather Trojek,
Vice Chair