Date: 2017-05-02

Amended on: 2017-06-21

Tribunal File Number: 16-004494/AABS

Case Name: 16-004494 v State Farm Mutual Automobile 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:

Y. C.

Applicant

And

State Farm Mutual Automobile Insurance Company

Respondent

AMENDED DECISION ON A MOTION

Order made by: Terry Hunter, Vice Chair

Date of Order: May 4th, 2017

Counsel for Applicant: Michael Bennett

Counsel for Respondent: Marni Miller

Heard by Teleconference: April 28, 2017

OVERVIEW

[1]. On April 18, 2017, the respondent brought a motion for a resumption of the case conference and to exclude the report of Dr. Waisman, dated March 28, 2017. The resumption was held on April 28, 2017 to address the respondent’s concerns.

[2]. In considering this request, I must balance the right applicant’s right to present her case despite submitting a report in contravention of an order made by the Tribunal against the respondent’s right to procedural fairness which would be remedied by being given the opportunity to respond to the late report.

[3]. For the reasons provided below the respondent’s motion is granted in part. The hearing currently scheduled for May 17 and 18, 2017 shall be adjourned to a date mutually agreeable to the parties in August or September of 2017 to allow the respondent the opportunity to have the applicant assessed by the respondent’s expert who could then comment on the report of Dr. Waisman dated March 28, 2017.

BACKGROUND

[4]. On January 1, 2013 the applicant was a pedestrian when she was struck by an automobile.

[5]. As a result of the accident, the applicant sustained injuries and made a claim for statutory accident benefits to the respondent. An Application of an Injured Person was submitted to the Licence Appeals Tribunal – Automobile Accident Benefits Service (the “Tribunal”) with respect to the dispute regarding the applicant’s claim for income replacement benefits.

[6]. A case conference was held on March 2, 2017, which resulted in the applicant’s claim being set for a hearing on May 17 and 18, 2017.

[7]. The case conference adjudicator, in an order dated March 16, 2017, established the parameters of the hearing. Paragraph 3 of the Order detailed the respondent’s objection to the applicant’s request to obtain further medical reports addressing the applicant’s entitlement to post 104 week income replacement benefits. The respondent submitted that the parties expert witnesses’ attend the hearing and present their evidence orally on the applicant’s post 104 week entitlement to income replacement benefits.

[8]. Paragraph 4 of the Case Conference Report dated March 16, 2017 found an in- person hearing to be the most appropriate hearing format. In her reasons the adjudicator states that this form of hearing “will permit both parties the opportunity to address the applicant’s entitlement to post-104 income replacement benefits by examining and cross-examining each others witnesses.”

[9]. The case conference adjudicator further ordered that as of March 16, 2017, no additional documents or records may be filed in the appeal without the permission of the Tribunal.

[10]. In addition to a report authored in 2015, the applicant obtained a report prepared by Dr. Zohar Waisman dated March 29, 2017. The applicant served the second report on the respondent after March 16, 2017 without the Tribunal’s permission, contrary to the Order of the Tribunal.

ANALYSIS AND REASONS

[11]. The respondent’s position is the 2017 Waisman Report should be excluded as evidence given the report was not permitted by the Case Conference Order. Secondly to permit the introduction of the report is highly prejudicial to the respondent who would be unable to secure an addendum report from their expert witnesses without an assessment and sufficient time to prepare a report in response. The respondent further submits that should Dr. Waisman testify at the hearing he should be precluded from referring to his 2017 assessment of the applicant and to his second report.

[12]. The applicant’s position is that Dr. Waisman’s 2017 report is a supplementary report to his 2015 report and does not materially differ so there is no reason why it should not be admitted into evidence at the hearing. The applicant concedes that the report would be admissible under the Tribunal’s Rules of Practice and Procedure save for the order of the Case Conference Adjudicator.

[13]. I find that if the Waisman Report of 2017 is admitted at the hearing scheduled to commence on May 17, 2017, the respondent will be prejudiced. The respondent would be equally prejudiced if Dr. Waisman is allowed to testify in respect to the assessment he conducted of the applicant in 2017. In the majority of the authorities relied upon by the applicant, whether a report was found supplementary or not, the court or tribunal cured the prejudice by extending the hearing date to allow the aggrieved party the opportunity to assess and rebut the report tendered when it was in noncompliance with a rule or an order.

[14]. The Tribunal has an obligation to ensure a fair and just determination of a case on its merits. An adjournment of the hearing addresses the procedural fairness required and allows the Waisman Report to speak to the merits of the applicant’s case.

[15]. The parties shall within 14 days confirm with each other mutually agreeable dates in August or September and advise the Tribunal.

[16]. I thank counsel for their full and able submissions.

Released: May 2, 2017

Terry Hunter, Vice Chair