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 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
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
File: 16-000324/AABS
Case Name: 16-000324 v. Wawanesa Mutual Insurance Company
Written Submissions By:
For the Applicant: Parent Litigation Guardian
For the Respondent: Katherine E. Kolnhofer
Overview
1This matter involves an application to the Licence Appeal Tribunal (“Tribunal”) for dispute resolution under the Statutory Accident Benefits Schedule – Effective after September 1, 20101 (the “Schedule”). More specifically, it deals with the Tribunal’s decision at the application’s hearing to admit certain evidence that the applicant allegedly filed late. The respondent argues that the Tribunal’s admission of this evidence breached the rules of natural justice and procedural fairness. Accordingly, it asked me reconsider the Tribunal’s decision. For the reasons that follow, I deny that request.
The Facts
2The applicant, H.C.C., was injured in a motor vehicle accident in September 2014. As a result, she sought medical benefits under the Schedule from her insurer, Wawanesa Mutual Insurance Company (“Wawanesa”). This gave rise to a dispute.
3The dispute centered on the cost of an electroencephalogram (“EEG”), a test that measures the brain’s electrical activity. A psychologist, Dr. Henry Svec, recommended that H.C.C. undergo the test. To that end, he completed a Treatment and Assessment Plan recommending the EEG at a cost of $1950.00. Wawanesa denied the claim on the basis of an insurer examination report prepared by Dr. A. H. Rubenstein, who concluded that an EEG was not reasonable and necessary.
4H.C.C.’s litigation guardian – her mother – then filed this application. As part of her application, she included a May 9, 2016 report prepared by Dr. Svec. In its response, Wawanesa indicated that it would rely on, among other things, insurer examination reports prepared by Dr. Rubenstein and Dr. O. Gharsaa.
5As part of the Tribunal’s usual process, the parties eventually attended a case conference to discuss, among other things, settlement and procedure. The parties were unable to settle their dispute. Consequently, the Tribunal issued an order, dated August 2, 2016, in which it scheduled the application for a written hearing on October 19, 2016. H.C.C.’s litigation guardian agreed that, in the event she intended to rely on any new documents at the hearing, she would provide them to Wawanesa by September 12, 2016. Despite that agreement, however, the Tribunal’s August 2, 2016 order outlined a schedule for the parties’ evidentiary and written submissions, according to which H.C.C. was required to file and serve her materials by October 3, 3016.
6On September 13, 2016, H.C.C.’s litigation guardian wrote to the Tribunal and Wawanesa’s counsel, asking that the September 12, 2016 deadline be extended. The following week, the Tribunal issued a notice of hearing in which it indicated, among other things, that H.C.C.’s evidence and submissions must be filed no later than October 3, 2016.
7On September 30, 2016, H.C.C. filed her materials. These totalled six pages. The last four of these were comprised of three documents authored by Dr. Svec: a Psychological and Consultation Final Report dated September 15, 2016, a Psychological Addendum Report dated August 22, 2016, and a September 27, 2016 letter to H.C.C.’s school principal.
8In its responding materials, Wawanesa objected to these documents being filed after September 12, 2016. Wawanesa argued they were “highly prejudicial.” It did not specify the actual nature of this claimed prejudice.
9In its final decision on H.C.C.’s application, the Tribunal admitted this evidence and held that H.C.C. was entitled to the EEG’s cost.
Discussion and Reasons
10Wawanesa now asks that I reconsider the Tribunal’s decision. It raises a number of arguments as to why the Tribunal should not have accepted the three documents filed after September 12, 2016. Its central argument is that, by admitting the three documents, the Tribunal breached the rules of natural justice and procedural fairness. I disagree.
11To begin, the September 12, 2016 deadline was self-imposed. H.C.C.’s litigation guardian may have agreed to provide Wawanesa with any new documents upon which she intended to rely by that date. However, although that agreement was noted in the Tribunal’s Case Conference Report, it was not, contrary to Wawanesa’s suggestion, included in the Tribunal’s order of August 2, 2016. The Tribunal’s order, like its Notice of Hearing, required H.C.C. to submit her evidence and submissions by October 3, 2016. The documents at issue were filed before then.
12Even if the September 12, 2016 deadline had have been included in the Tribunal’s order, Wawanesa’s request would still fail. Wawanesa’s argument is premised on Rule 9.4 of the Tribunal’s Rules of Practice and Procedure, which provides as follows:
If a party fails to comply with any Rules or Orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.
13The wording of this rule makes clear that parties who fail to comply with production orders or filing deadlines are not necessarily precluded from relying on the material produced or filed. The Tribunal maintains the discretion to admit any such material. In this case, I see no error in the Tribunal’s exercise of that discretion. The Tribunal noted that Dr. Svec’s Psychological and Consultation Final Report and his letter to H.C.C.’s school principal were both created after September 12, 2016. Further, the Tribunal noted that Wawanesa could have always requested an adjournment to afford it the chance to respond to these documents. I agree. If Wawanesa truly believed that it was prejudiced by the “late” arrival of the documents at issue – which were filed on September 30, 2016, less than three weeks after September 12, 2016 – it should have objected to, and sought to manage, this prejudice earlier, not wait until it filed its submissions on the application’s merits.
14At any rate, the Tribunal did not rely on any of the disputed evidence in rendering its decision. In determining that H.C.C. was entitled to the EEG’s cost, the Tribunal’s reasons rely explicitly on other evidence filed in this matter, namely Wawanesa’s insurer examination reports prepared by Dr. Rubenstein and Dr. Gharsaa, along with Dr. Svec’s May 9, 2016 report appended to H.C.C.’s application. None of the three offending documents are mentioned. Thus, assuming that H.C.C.’s “late” filing did indeed attract a remedy, I fail to see how any such remedial approach would affect the Tribunal’s decision.
Conclusion
- For the reasons above, I therefore deny the request for reconsideration.
Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario
Released: May 26, 2017