Date: 2017-06-30

Tribunal File Number: 17-001054/AABS

Case Name: 17-001054 v TD Insurance Meloche Monnex

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:

N. Y.

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION ON A WRITTEN MOTION

Decision made by: Date of Decision:

Counsel for the Applicant: Counsel for the Respondent:

Cezary Paluch June 30, 2017

Steven M. Polak Peter Mendelsohn

OVERVIEW

1. The Tribunal held a case conference in this matter on April 18, 2017. The issue in dispute is whether the applicant is entitled to a non-earner benefit in the amount of $185 per week from April 29, 2016 to date and on-going.

2. A case conference report and Order (the “Order”) was released to the parties on May 3, 2017, confirming a hearing date for July 17, 2017 and setting out procedural steps all agreed to by the parties.

Applicant Motion

3. On June 5, 2017, the applicant filed a Notice of Motion requesting the following:

1. First, corrections to the Order.

2. Second, an order restricting the admissibility of insurer addendum reports.

3. Third, if the addendum reports are permitted as evidence at the hearing, permission to cross examine the respondent’s experts.

4. Fourth, a brief adjournment of the hearing to allow the applicant to obtain a supplementary report in response to the insurer’s new reports.

5. Lastly, costs.

RESULT

4. I make the following findings and orders:

6. Typographical errors in the Order, if any, can be addressed with the hearing adjudicator.

7. The respondent’s expert addendum reports or updates are relevant and are admissible in this hearing.

8. The July 17, 2017 hearing date of this application is adjourned to a new date within 60-90 days of the date of this order. The new date is to be agreed to by the parties immediately in conjunction with the Tribunal.

9. The applicant is permitted to cross examine the authors of the respondent addendum reports.

10. The claim for costs is dismissed.

ANALYSIS

5. A written motion hearing was held on June 27, 2017. These are the reasons for my decision.

1) Request to Correct or Amend the Order

6. The applicant’s first request in this motion is that the Order be amended to confirm the following:

i. the applicant’s counsel has a right to re-examine the applicant after the completion of the respondent’s cross-examination;

ii. the respondent is to provide the adjusters notes up to the date of the LAT application and any draft reports; and

iii. the applicant is relying on her experts as noted in the case conference report and the respondent is not relying on the applicant’s experts.

7. I discuss each of the above three sub issues below.

i. Right to re-examine the applicant at the hearing

8. Paragraph 4 of the Order states that “the Respondent shall cross-examine the applicant by telephone on July 17, 2017”. Also, paragraph 5 states that: “subject to the discretion of the hearing adjudicator, the cross examination of the applicant shall be limited to 1.5 hours.” The Order does not specifically speak to allowing the applicant’s counsel the opportunity to re-examine his client. I am not sure if this was even raised at the case conference.

9. It is settled law that the right to re-examine a witness exists where there has been cross-examination and is confined to explanation of matters arising in that examination.¹ This principle is in conformity with the Tribunal’s obligation to ensure a fair and just hearing on its merits. In my view, the opportunity to have the right to re- examine is also that much more critical in this case, given that the applicant has the onus to prove her case on a balance of probabilities.

10. Although this is something that could have been addressed at the hearing, and I am certain that a hearing adjudicator would allow any party the opportunity to re- examine a witnesses even if this has not been explicitly provided for in an order, to avoid any confusion, subject to the discretion of the hearing adjudicator with respect to any time allocations, the applicant’s counsel shall have the right to re-examine the applicant after completion of the cross-examination by the respondent via teleconference.

ii. Production of adjuster notes up to the date of the LAT application and any draft reports of the assessors.

11. Although the applicant included this request as part of her request to amend and correct the Order, this is in fact a new request for production that was not raised at the Case Conference. For the reasons that follow, I deny the applicant’s request.

12. This is a request for production of documents, namely, adjuster notes and draft reports of the assessors after the completion of a case conference. The Order does not provide for this disclosure. The respondent in its reply submissions to this motion opposes this production request because they state that the applicant has sufficient documentation to rely upon in order to make their arguments and submissions.

13. Pursuant to Rule 14.2 of the Tribunal’s Rules of Practice and Procedure, one of the purposes of the case conference is to direct the parties to consider:

e) Disclosure and the exchange of documents, including witness statements and expert reports

14. Similarly, the Notice of Case Conference that was provided to the parties prior to the case conference on April 18, 2017, at page 2, echoes similar directions to the parties:

The purpose of this case conference is to discuss the claim(s) and to:

(5) Disclose and exchange information;

15. Therefore, the case conference is an important procedural step in the adjudication process by which requests for information and disclosure are to be made. I note that the Case Conference Report of May 3, 2017 did not make any mention of the applicant requesting production of adjuster notes up to the date of the application and any draft reports. If the applicant wanted this information for the hearing, she should have made her request to the adjudicator at that time. It does not appear that this was ever done although I am not certain based on the submissions provided.

16. The Tribunal has the power to order a party to produce any document or information that is arguably relevant to the proceeding. The party seeking production must establish a nexus between the information or document sought and the issue in dispute before the tribunal. The only substantive issue in this case is whether the applicant is entitled to a non-earner benefit. The test for non-earner benefit requires that the claimant suffer “a complete inability to carry on a normal life” within 104 weeks of the subject accident. This will involve a comparison of the claimant’s activities and life circumstances before the accident to her activities and life circumstances after the accident. I fail to see how adjuster notes and draft reports are relevant to this issue and would assist the applicant in satisfying this test.

17. I also noted that the only two issues in dispute as part of the Order are: (i) non- earner benefits; and (ii) interest. The applicant appears not to have raised an award (or “special award”) as a designated issue before the Tribunal related to allegations that the respondent unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664.

18. Therefore, I find that the applicant has failed to answer, in her motion, why the documents requested are relevant. If the applicant felt that these documents were important, she had the opportunity to bring the issue up at the case conference. It is not enough to simply assert that the documents are relevant, one must explain why they are relevant to the very issues before the Tribunal.

19. The applicant’s request for the production of adjuster notes is denied.

iii. The applicant is relying on her experts noted in the case conference report and the respondent is not relying on the applicant’s experts

20. The applicant’s counsel states that there are typographical errors in the Order related to the parties relying on the wrong experts for each side. Page 2, paragraph 3 of the Order states that the applicant intends to rely upon the medical reports of Dr. Swayze, Dr. Getahun, Dr. Basile and Bonnie Korren. These are the same four (4) individuals listed in paragraph 3 of the case conference report. In my comparison of these two documents, the wording is exactly the same in both the Order and case conference report and there does not seem to be any inconsistencies between the individuals who are providing the reports for each party.

21. The applicant has not made it clear what specific error she is referring to. If there are errors, they seem to be minor and do not affect the substance of the Order and can be addressed with the hearing adjudicator on the return date of this matter.

22. The applicant’s request to amend the Order is denied.

2) Admissibility of the Insurer’s Addendum Reports

24. The applicant’s second request in this motion is that the respondent’s supplementary or addendum reports completed by Dr. Osama Gharsaa, Dr. Gary Moddel and Dr. Irina Valentina not be admitted in this hearing (the “Addendum Reports”).

25. Paragraph 3 and 7 of the Order lists the medical reports and records of the doctors that each party will be submitting and relying upon at the hearing. Important for the determination of this issue are the timelines when this information was due:

Applicant’s Submissions May 26, 2017

Respondent’s Submissions June 26, 2017

Applicant’s Reply July 7, 2017

26. As per the Order, the applicant provided her submissions and evidence by May 26, 2017. However, on June 2, 2017 (notably after the applicant’s submissions were already completed), the respondent provided the applicant with an addendum report dated May 30, 2017. As I understand the applicant’s position, this new updated report changes the nature of the evidence that the applicant is confronted with as the prior report, which she based her original submissions on, concluded that the insurer’s expert psychologist could not definitively say yes or no as to whether the applicant was entitled to non-earner benefits.

27. With respect to the applicant’s argument that she is somehow prejudiced because the addendum report was provided after the date that her submissions were due, I acknowledge there may be some ambiguity in the phrase or language used in the Order: “The Respondent intends to submit the following medical reports/records” with no reference to any addendum or updated reports. Here, I note that the adjudicator specifically used the plural of the word “report/record”. In my view, the Order does make reference to multiple “reports/records” (not “report/record” as in one) which indicates to me that more than one report or record of the doctors was contemplated and could be submitted by the respondent. However, the Order does not specify that the only reports that the parties are allowed to rely upon are the ones that have been exchanged up to that point. To the contrary, the language in order anticipates that the medical reports will be submitted in the future by stating: “The Respondent intends to submit the following medical reports.” Accordingly, the Addendum Reports may be used at the hearing by the respondent as they relevant and likely useful to the determination of the main issue in dispute.

28. I find the Addendum Reports are relevant to the issues before the Tribunal. However, accepting the Addendum Reports without providing an opportunity for the applicant to respond (especially when the applicant submits that the psychological reports has a “massive marked change”), would be unfair to the applicant. As well, given my acknowledgment that there may have been some ambiguity in the Order, and as to give the applicant every opportunity to have a fair hearing and present her case, I will allow the applicant to opportunity to cross examine the respondent’s experts who prepared the Addendum Reports by telephone subject to time limitations of the hearing adjudicator.

29. Both parties counsel are reminded for the future that under Rule 9.4 of the Tribunal 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.

3) Request to Cross Examine Respondent’s Experts

30. The applicant requests permission to cross examine Dr. Osama Gharsaa, Dr. Gary Moddel and Dr. Irina Valentina (the doctors who prepared the Addendum Reports).

31. The format of the hearing was agreed to by the parties at the case conference held on April 18, 2017. At that time, the parties agreed to a combination or hybrid type hearing with medical evidence being submitted by reports/records and an in person portion for the purpose of cross examining the applicant by the respondent. However, the applicant did not have the Addendum Reports at the time of the case conference.

32. I find given the change in position of the respondent’s experts from the initial report to the updated report, the opportunity to cross examine the assessors is reasonable. The examinations shall be conducted by teleconference and subject to the discretion of the hearing adjudicator shall be limited to 1.0 hour per expert.

4) Request to Adjourn the hearing and permit the applicant to obtain supplementary reports

33. The applicant’s fourth request in this motion is to adjourn the hearing.

34. The respondent consents to an adjournment. The respondent submits that the applicant is currently scheduled to have an Insurer’s Examination completed on August 3, 2017 to determine whether she is catastrophically impaired. If she is found to be catastrophically impaired, this may have a bearing on the respondent’s position with respect to non-earner benefits. Accordingly, the respondent consents to adjourn the hearing for up to 90 days to allow this examination to be completed.

35. The Tribunal’s Rules of Practice and Procedure do not specifically provide guidance as to what factors I must consider in deciding whether to grant or refuse an adjournment. However, further authority to adjourn hearings is found in section 21 of the [Statutory Powers Procedure Act]², which provides that:

Adjournments

21. A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held. [emphasis added]

22. My reading of this provision is that the central consideration on any motion for an adjournment is to permit an adequate or full and fair hearing of the matter to take place and assist the adjudicator to make a decision based on the merits of the case.

23. In a motion dealing with an adjournment request, Vice Chair Trojek, in 16- 001394 v Northbridge Personal Insurance Corporation, enunciated this overriding principle that the Tribunal has an obligation to ensure a fair, just, expeditious and cost efficient determination of every case on its merits.

24. A recent Reconsideration Decision in Tribunal File 16-003927/AABS by Executive Chair, Linda Lamoureux,³ granted an adjournment requested on consent of both parties where there was indication from the parties that a scheduled global mediation might resolve the differences and avoid duplication of work. This is similar to the facts of this case where the request for an adjournment is on consent of both parties and there is clear indication from both of them that the results from a pending examination may impact the insurer’s position with the very issue before the Tribunal. In other words, it seems, the parties may resolve their differences. If successful, this would avoid duplication of work and potentially circumvent two separate applications proceeding before the Tribunal.

25. For the reasons provided above, I find that the applicant has provided sufficient reasons to justify adjourning the hearing. The additional time will also permit her to obtain any reply medical reports. The applicant’s request for an adjournment of the hearing is granted.

26. I am also mindful of Rule 16.1 of the Tribunal’s Rules of Practice and Procedure which states that requests for an adjournment of a hearing must include at least three alternative dates within 30 days of the hearing. However, Rule 3.1 also requires that the Rules be “liberally interpreted and applied.” The applicant has not proposed any dates in her motion materials other than state that the hearing should be adjourned for 60 days (with the respondent suggesting up to 90 days).

27. Although I am unable to fix a new hearing date at this time, the parties are required to contact the case management officer immediately and schedule a hearing date no greater than 90 days from the date of this order to schedule the following:

i) cross examination of the applicant including any re-examinations; and

ii) cross examination of the respondent’s witnesses who prepared the Addendum Reports.

5) Costs

42. The final issue in this motion is a request for costs by the applicant.

43. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure costs are an exceptional remedy. There must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding.

44. The applicant appears to raise the issue of costs in Schedule A (paragraph 3) of her submissions. I find that the applicant has not provided sufficient evidence or particulars of how the respondent’s conduct was unreasonable, frivolous, vexatious, or in bad faith, to satisfy Rule 19.1. The claim for costs is dismissed.

CONCLUSION / ORDER:

45. Having considered the parties’ written submissions, I order as follows:

i. the parties can seek corrections of any typographical errors in the Order, if any, with the hearing adjudicator on the return date of this matter;

ii. the applicant’s counsel shall have the right to re-examine the applicant after completion of the cross-examination of the applicant by the respondent;

iii. the respondent is not required to produce the adjuster notes up to the date of the application and draft reports;

iv. the updated or Addendum Reports completed by Dr. Osama Gharsaa, Dr. Garry Moddel, Dr. Irina Valentina are permitted as evidence at the hearing;

v. the adjournment request of the hearing is granted; and

vi. the respondent will make the doctors who prepared the Addendum Reports available by telephone for the purpose of being cross examined by the applicant.

Released: June 30, 2017

Cezary Paluch, Adjudicator

Footnotes

1. 1R. v. Moore (1984), 1984 CanLII 3542 (ON CA), 15 C.C.C. (3d) 541 (Ont. C.A.).
2. 2Statutory Powers Procedure Act, RSO 1990, c S.22.
3. 316-003927 v. Intact Insurance Company, 2017 CanLII 31491 (ON LAT).