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 n^o^ 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: 17-001054/AABS
Case Name: N.Y. vs. TD Insurance Meloche Monnex
Written Submissions By:
For the Applicant: Steven Polak
For the Respondent: No Submissions
Overview
- This request for reconsideration concerns a motion made by the applicant, N.Y. For the most part, the motion sought to enforce N.Y.’s view of the procedure by which her application under the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”) should be determined. In its decision of June 30, 2017, the License Appeal Tribunal (the “Tribunal”) partially granted the motion. N.Y. now asks me to reconsider the Tribunal’s decision to, in effect, obtain the balance of her requested relief. For the reasons below, I deny her request.
Facts
The accident and the parties’ dispute
- N.Y. was injured in a motor vehicle accident on May 23, 2014, after which she sought benefits under the Schedule from her insurer, TD Insurance Meloche Monnex (“TD”). Eventually, the parties disagreed over N.Y.’s coverage. The central issue between the parties is whether N.Y. is entitled to receive non-earner benefits in the amount of $185 per week from April 29, 2016 to date and ongoing. Given her disagreement with TD, N.Y. commenced an application with the Tribunal.
The Tribunal’s case conference order
- On April 18, 2017, the Tribunal held a case conference with the parties to discuss, among other things, hearing procedure. The parties agreed that this matter should proceed by way of a hybrid hearing, specifically with the parties filing their evidence and submissions in writing, with a later teleconference for N.Y.’s cross-examination and the parties’ closing submissions. The Tribunal’s resulting case conference order of May 3, 2017 then set out, among other things, the following schedule: N.Y.’s submissions and evidence were due on May 26, 2017; TD’s submissions and evidence were due on June 26, 2017; N.Y.’s reply, if any, was due on July 7, 2017; and the teleconference would take place on July 17, 2017.
The addendum reports
- Further to the Tribunal’s May 3, 2017 order, N.Y. filed her submissions and evidence by May 26, 2017. Then she received new evidence from TD. By letter dated May 30, 2017, TD provided her with multiple addendum reports from its assessors. Although N.Y. had received copies of the initial reports authored by TD’s assessors, she claimed that she did not expect to receive the addendums, particularly after filing her own evidence and submissions shortly before.
N.Y.’s motion and the Tribunal’s decision
- N.Y. thus made her motion. The motion took issue with the admissibility of the addendum reports. It also requested various other forms of relief. In its decision of June 30, 2017, the Tribunal partially granted the motion, but denied the following:
The addendum reports: N.Y. asked the Tribunal to refuse to admit the addendum reports. The Tribunal held that the reports appeared to be contemplated by the May 3, 2017 order, and that they were relevant to the issues in dispute, and, thus, should be admitted. However, the Tribunal recognized that N.Y. should have the ability to respond to this evidence and, therefore, ordered TD to make the reports’ authors available for cross-examination during the hearing’s teleconference portion. The Tribunal also directed the parties to contact their case management officer to reschedule the teleconference date for no more than 90 days later in order to accommodate a scheduled Insurer’s Examination (“IE”) that might have some bearing on the issues in dispute. Importantly, N.Y. had requested the adjournment as an alternative form of relief in order to allow her to obtain supplementary reports of her own. Although the adjournment was granted in order to accommodate the IE, it nonetheless granted N.Y. the ability to obtain any supplementary reports she felt necessary.
The adjuster notes and draft reports: N.Y. asked for an order requiring TD to produce its adjuster’s log notes up to the date of the application, as well as to produce any draft reports from its assessors. The Tribunal denied this request on the basis that N.Y. failed to explain why these documents were relevant.
Corrections to the order: N.Y. asked that the May 3, 2017 order be amended to clarify that the parties would be relying on the experts noted in the case conference report, something that N.Y argued was not accurately reflected in the order. The Tribunal refused this request on the basis that it could not identify any material difference between the case conference report and the order.
Costs: N.Y. also appeared to ask for a cost order. The Tribunal dismissed the request on the basis that she failed to provide any particulars of the conduct satisfying the threshold in Rule 19.1 of the Tribunal’s Rules of Practice and Procedure (the “Rules”) for such an award.
- Following their receipt of the Tribunal’s June 30, 2017 decision, the parties contacted the Tribunal, which rescheduled the June 17, 2017 teleconference date to October 17, 2017.
The request for reconsideration
- On July 14, 2017, N.Y. submitted a request for reconsideration, asking me to reverse the Tribunal’s determinations above. For the reasons below, I refuse.
Discussion and Reasons
The addendum reports
Again, N.Y. argues that the addendum reports should not be admissible. She makes this argument on a number of bases.
First, N.Y. takes issue with the Tribunal’s determination that the reports appeared to be contemplated by the May 3, 2017 order. The Tribunal noted that the order provided that the “Respondent intends to submit the following medical reports/records” [emphasis added], after which the order then named the assessors at issue. In the Tribunal’s view, although the order did not make any explicit reference to addendum reports, the order’s use of the word “intends” and the plural “reports/records” indicated, “more than one report or record of the doctors was contemplated.” Nevertheless, the Tribunal acknowledged that the order’s language was ambiguous. I agree. The order’s language could have just as easily been interpreted as suggesting TD’s intention to rely on only the multiple initial reports of the assessors named thereafter. For that reason, I attribute no significance to the order’s language.
Still, the Tribunal was clearly of the view that the reports were relevant to the central issue in dispute and, therefore, should be admitted. I see no reason to interfere with that conclusion. To the extent that TD’s assessors have amended their opinions, they should not be precluded from doing so. Indeed, preventing them from updating their opinions would leave the Tribunal with an inaccurate and misleading view of their evidence, if not deny TD its ability to respond to the case it has to meet. The best evidence reasonably available should as in all matters, inform the Tribunal’s decision. The addendum reports constitute such evidence. In my view, their potential value outweighs any prejudice that N.Y. has identified in her submissions, whether on the motion or on this request.
In addition, N.Y. has the ability to respond to this evidence. N.Y. submits that admitting the addendums would constitute a breach of procedural fairness in that it would “rob her of her right to be heard in a fair way.” The addendums may have come late in the day. Nevertheless, the Tribunal granted her the ability to cross-examine their authors. Moreover, she also had the ability to respond to this new evidence, if necessary, through her right of reply or by obtaining updated assessments of her own in the months during which this matter has now been adjourned. In fact, N.Y.’s motion asked specifically that, as an alternative to barring the addendums from admission, the Tribunal adjourn this matter to permit her to “obtain supplementary reports” and permit her to cross-examine TD’s assessors. The Tribunal has given N.Y. both opportunities. For that reason, I see no impairment of her ability to respond.
As for the suggestion that the addendums came to N.Y. as a complete surprise, I disagree. The record makes clear that the addendums were generated after N.Y.’s counsel sent TD additional medical documentation. Obviously, TD then had an obligation to adjust the file. To that end, by letter dated May 1, 2017 – after the parties’ case conference and before the Tribunal’s case conference order was issued – TD informed N.Y. that it had submitted this new information to its assessors and that it would provide N.Y. with a copy of any resulting report. Put another way, not only was TD obligated to take steps that ultimately led to the addendums, but it also flagged the possibility of their arrival one month before. In the circumstances, I see no error in the Tribunal’s approach, which appropriately balanced TD’s right to respond against N.Y.’s right to a fair hearing.
I also find no merit in N.Y.’s argument that the “hearing” in this matter has already commenced and, therefore, this new evidence cannot be submitted. N.Y.’s argument here is based on, as she describes it, the Tribunal’s “general rule requiring reports to be tendered in advance of the hearing.” That is certainly what the Tribunal attempts to achieve. However, even the Rules recognize that there may be unusual circumstances in which exceptions should be made. Rule 9.4 provides that, if a party fails to comply with any “Rules or Orders with respect to disclosure”, that party “may not rely on the document or thing as evidence…without the consent of the Tribunal” [emphasis added]. As the master of its own procedure, the Tribunal saw fit to grant that consent. For the reasons above, I see no principled basis upon which to interfere with that decision.
The adjuster notes and draft reports
N.Y.’s request for reconsideration also takes issue with the Tribunal’s refusal to order TD to produce its adjuster’s log notes and any draft reports from its assessors. Specifically, she asserts that she previously requested these documents at the parties’ case conference, during which she apparently also indicated that she would be making a claim that “the Insurer’s conduct had been unreasonable,” thereby making these documents relevant.
Having reviewed N.Y.’s case conference summary and the Tribunal’s case conference report, I see no indication of any such request having been made. Thus, this request for production appears to me, as it did to the Tribunal, new. It is also opposed. To the extent that N.Y. suggests that TD agreed to produce such material, TD’s response to N.Y.’s motion clearly suggests otherwise – TD opposed their production. Thus, I cannot agree with N.Y. on either of these points.
Ultimately, the Tribunal’s main consideration on this point was relevance. The Rules allow the Tribunal to order, at any stage in a proceeding, production of material that is arguably relevant to the issues in dispute. The party seeking production must establish the relevance between the material sought and the dispute before the Tribunal. In the Tribunal’s view, the requested records were not relevant. As it explained at paras. 16 to 18 of its decision:
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.
I also noted that the only two issues in dispute as part of the Order are: (i) nonearner 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.
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.
- In her request for reconsideration, N.Y. attempted to explain the relevance of the requested documents by highlighting that she indicated at the case conference that she would be making a claim that “the Insurer’s conduct had been unreasonable.” However, based on my review of the Tribunal’s record, she has still neither amended her application nor has she indicated in any other way to make clear that she is seeking a “special award.” As a result, I see no ground under Rule 18 to interfere with the Tribunal’s analysis above.
Corrections to the order
N.Y. also asks again that the May 3, 2017 order be amended to clarify the experts upon which the parties will be relying. The Tribunal refused this request on the basis that it could not identify any material difference between the case conference report and the order.
There is no difference. Instead, there has been some administrative error, giving rise to N.Y.’s understandable confusion. When one examines the case conference report and the May 3, 2017 order that is a part of the Tribunal’s record, the key content – i.e., the experts noted therein and the parties relying on them – are identical. However, the copy of the May 3, 2017 order that N.Y. received following the case conference is different from the version that is a part of the Tribunal’s record. This different version was obviously sent to N.Y. in error. In this sense, the May 3, 2017 order that is part of the Tribunal’s record actually provides the clarity that N.Y. seeks. Thus, there is no relief for me to grant. When my decision in this matter is released to the parties, I will also direct the Tribunal to send N.Y a copy of the correct version of the May 3, 2017 order.
Costs
N.Y. also takes issue with the Tribunal’s refusal to make a costs order against TD. She argues that, contrary to the Tribunal’s suggestion that she failed to provide the particulars of the conduct warranting such an award, her motion submissions described several examples.
Here, N.Y.’s submissions miss the Tribunal’s point. Her motion materials contained a single, passing reference to her wanting the Tribunal to grant her costs. At no point did they actually reference Rule 19, the criteria therein, or list examples of the conduct that should justify such an award. Instead, the materials simply left it for the Tribunal to piece together the argument, if not be her advocate, and arrive at the desired result.
Aside from the manner in which it was put forth, I have difficulty with N.Y.’s request. To the extent that it points to conduct that happened before she commenced her application, Rule 19 offers no recourse. Rule 19 allows the Tribunal to order costs to address conduct “in a proceeding.” In turn, Rule 2.17 defines “proceeding” as “the entire Tribunal process from the start of an appeal to the time a matter is finally resolved.” Moreover, the event that triggered the motion – i.e., TD providing N.Y. with the addendum reports – was something that TD forecasted one month in advance and that, ultimately, the Tribunal permitted. There is nothing in the Tribunal’s reasons to suggest that it thought that TD’s conduct constituted the type of behaviour attracting costs. I also see no conduct in the facts giving rise to this motion that should warrant a cost award. For those reasons, I would deny N.Y.’s request.
To be clear, my determination is limited only to this motion. Should N.Y. feel the need to seek costs to address TD’s conduct throughout this matter, she is still free to do so.
The need for affidavits
Lastly, N.Y. asserts that the May 3, 2017 order should be amended to clarify that the parties have agreed, “the reports and records could be submitted as evidence without affidavits from the doctors.”
Based on my review of the record, this request was only made explicit for the first time on this request for reconsideration. For that reason alone, I would refuse to deal with it. Still, it seems to me that this relief is not necessary. If the parties have indeed reached this agreement, they may still proceed on that basis. Additionally, in the absence of any such agreement, s. 15 of the Statutory Powers Procedure Act, RSO 1990, c S.22 paves the same procedural road forward.
Conclusion
- This request for reconsideration is denied.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: October 6, 2017