Licence Appeal Tribunal
Tribunal File Number: 16-001732/AABS
Case Name: 16-001732 v Wawanesa Mutual 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:
K. J.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
MOTION DECISION
Adjudicator: Cynthia Pay
Written Submissions By:
For the Applicant: Nicole Corriero
For the Respondent: Anju Sharma
Hearing in writing: January 19, 2017
Overview and Background:
1The applicant was involved in an automobile accident on December 22, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2He applied for medical rehabilitation benefits and for the cost of an examination, but these benefits were denied by the insurer. The applicant submitted an Application to the Licence Appeal Tribunal - Automobile Accident Benefits Services (the “Tribunal”) to determine his entitlement to these benefits. The Tribunal held a case conference during which a written hearing was scheduled to be held on January 19, 2017 to determine his entitlement.
3During the case conference the parties agreed to deadlines for the submission of written submissions and evidence. The parties both provided their initial written submissions in accordance with the deadlines set out in the Tribunal’s Order. The applicant, however, later submitted a report by Dr. D.J. Ogilvie-Harris two days before the hearing date, which was the date he was to submit his reply.
4The respondent raised a preliminary issue in writing to object to the inclusion of this report, as it was not served in accordance with the Tribunal’s Rules of Practice and Procedure.
5The applicant responded in writing to the respondent’s request, and argued that the report should be considered. He submitted that the respondent was not prejudiced by its late submission, and that the report is relevant and important to the applicant in order to establish his entitlement.
6I will address this as a preliminary issue.
Preliminary issue:
7The preliminary issue to be decided is: should Dr. Ogilvie-Harris’s report be excluded from the hearing?
Should Dr. Ogilvie-Harris’s report be excluded from the hearing?
8I will not exclude Dr. Ogilvie-Harris’s report from the hearing. This report should have been submitted with the applicant’s original submissions in order to provide the respondent with an opportunity to respond. This prejudices the respondent, and is not in compliance with the Tribunal’s Order. On the other hand, Dr. Ogilvie-Harris’s report is relevant and will be useful in adjudicating the issues in dispute. The applicant argued that he will be prejudiced if the report is excluded and that any prejudice to the respondent can be cured by providing it with time to respond to this report. I accept this submission. I will therefore accept Dr. Ogilvie-Harris’s report, but will provide the respondent with time to respond.
9The Tribunal’s Order dated November 15, 2016 provided deadlines for submissions. The Order states that the applicant was required to submit “written submissions and evidence” by December 30, 2016. The respondent’s written submissions and evidence were due by January 13, 2016. The applicant was permitted to provide a reply by January 17, 2017. It appears from the Order that the parties agreed to these provisions regarding the deadlines for submissions and evidence.
10On January 17, 2017, the applicant submitted an Orthopaedic Assessment report by Dr. Ogilvie-Harris dated November 26, 2016. According to the Order, it appears that this report was submitted late, as the applicant’s “evidence” should have been submitted by December 30, 2016. The report is dated November 26, 2016, but no explanation was provided by the applicant for its late submission.
11The respondent has now raised a preliminary issue, requesting that the Tribunal exclude Dr. Ogilvie-Harris’s report on the basis that it was not served in accordance with Rule 9.2 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (“LAT Rules”). The respondent does not raise the issue of prejudice in its letter.
12The applicant responds that the respondent has not suffered any real prejudice as it has “had the opportunity to review and address” the report for its written submissions. This seems to suggest that the respondent may have already received a copy of the report in advance of it being served on January 17, 2017, but this is not clear. The applicant further asserts that the report is important in the determination of his entitlement to benefits, and that the prejudice to him caused by excluding the report would far outweigh any prejudice to the respondent. He also argues that any prejudice to the respondent could be remedied through an extension of time to deliver their submissions.
13Rule 9.2 of the LAT Rules provides that all documentary evidence must be disclosed at least 10 days before the hearing or at any other time ordered by the Tribunal. Rule 10 provides that disclosure of expert witness reports by the applicant is required at least 30 days before the hearing. According to the Order, the applicant’s submissions and evidence were due on December 30, 2016.
14The applicant filed Dr. Ogilvie-Harris’s report on January 17, 2017. This was well after the applicant’s deadline for submissions and evidence, and only two days before the hearing, which was not in accordance with the dates ordered by the Tribunal or the LAT Rules. This was also after the respondent had filed its own submissions. The respondent will be prejudiced if it is denied the opportunity to respond to this evidence.
15Rule 3.1 of the LAT Rules provides that the Rules will be liberally interpreted and applied and may be varied or applied to facilitate “a fair, open and accessible process”.
16Dr. Ogilvie-Harris’s report is relevant and likely necessary to the determination of the issues in dispute. As a result, I will exercise my discretion pursuant to Rule 3.1 and accept this report despite its late submission.
17Accepting the report without providing an opportunity for the respondent to respond, however, would be unfair to the respondent. This prejudice can be cured by providing it time to review this report, and to respond by way of further written submissions if it feels it necessary. The respondent may provide a further written submission of up to five pages and additional evidence as provided in the Tribunal’s original Order. These submissions are due within 30 days of the date of this Order.
18Applicant’s counsel is reminded for the future that under Rule 9.4 of the LAT Rules, a party may not rely on any materials that are disclosed in a manner that does not comply with the Rules or Orders without the Tribunal’s consent.
Conclusion:
19I will not exclude Dr. Ogilvie-Harris’s report from the hearing.
20The respondent may submit responding material of up to five pages of written submissions plus any additional evidence in reply within 30 days of the date of this Order.
21The written hearing will be rescheduled to May 8, 2017.
Released: March 16, 2017
______________________________
Cynthia Pay,
Adjudicator