Licence Appeal Tribunal
Tribunal File Number: 16-001993/AABS
Case Name: 16-001993 v Aviva Insurance
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J.Y.
Applicant
and
Aviva Insurance
Respondent
ORDER
Order made by: Heather Trojek, Vice Chair
Date of Order: March 3, 2017
For the following reasons the respondent’s request to adjourn the hearing in this matter is denied.
The in-person hearing was scheduled to take place on March 23, 2017. On February 28, 2017, counsel for the respondent submitted a request to adjourn the hearing because one of its two expert witnesses, Dr. Lee, psychologist, would be out of the country from March 9, 2017 to March 26, 2017. The respondent provided three alternate dates to reschedule the hearing, June 7, 2017; July 8, 2017; and July 9, 2017. Counsel for the applicant consented to the adjournment via email on February 15, 2017.
The case conference in this matter took place on November 16, 2016. At the case conference the parties agreed to the date of the hearing and on the witnesses that would be called.
I find that the respondent failed to submit the adjournment request in a timely manner. The request was submitted to the Tribunal 104 days after the case conference and only 23 days before the hearing. Requests for adjournment of a hearing, particularly those that are not made in a timely manner, negatively impact an applicant’s right to a fair and timely hearing and frustrate the Tribunal’s ability to fulfil its mandate.
The respondent failed to provide any explanation or evidence that it made reasonable efforts to ensure its witness was available to attend the hearing. Counsel for the respondent did not provide any information regarding when Dr. Lee was first notified or summoned to attend the hearing. Nor did counsel for the respondent provide any information as to when the respondent first learned that Dr. Lee would be unable to attend the hearing.
The applicant submitted his application to the Tribunal on August 12, 2016. The respondent confirmed its intention to call Dr. Lee as an expert witness in its case conference summary dated November 4, 2016. The respondent had sufficient time in advance of the case conference in November 16, 2016 to canvass the availability of its witnesses. Had the respondent become aware shortly after the case conference, there was sufficient time to correct the error and seek an adjournment. The record indicates that the respondent obtained the consent of the applicant on February 15, 2017 but did not raise the matter with the Tribunal until February 28, 2017.
Further, the respondent is requesting in an adjournment of between 76 and 107 days. Rule 16.1 states that request for a hearing must include at least three alternative dates within 30 days of the hearing. The respondent provided no evidence as to why such a long adjournment was necessary in the circumstances.
The Tribunal has an obligation to ensure a fair, just, expeditious and cost efficient determination of every case on its merits. The Tribunal is also mindful of the consumer protection nature of the Statutory Accident Benefits (SABS) to persons injured in automobile accidents in Ontario. Although, the consent of the parties is a factor the Tribunal will weigh when determining whether to grant an adjournment, it is not the only or determinative factor. I find that granting an adjournment of this length without a more complete evidentiary record as to the steps the respondent took to secure the attendance of the witness and why an earlier date was not available impairs the Tribunals ability to ensure that the applicant receives a fair and expeditious hearing.
Should the respondent comply with Rule 16.1 and provide alternative dates within 30 days of the original hearing date that are agreeable to the applicant; and should the respondent provide a more complete explanation for the delay in submitting the request to the Tribunal; and detail what reasonable efforts were made to secure the attendance of the expert at the hearing, the Tribunal would reassess the merits of an adjournment. The record before me cannot support such an order.
My order does not vary any of the orders made by the in case conference adjudicator.
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 3, 2017
Heather Trojek,
Vice Chair