Tribunal File Number: 17-002973/AABS
Case Name: 17-002973 v Aviva 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:
S. V.
Applicant
and
Aviva Insurance Company
Respondent
MOTION DECISION
Adjudicator: Cezary Paluch
Appearances: Counsel for the applicant: Mariya Verkhovets Counsel for the respondent: Matus Averbuch
OVERVIEW
1The applicant was injured in an automobile accident on March 31, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').
2The applicant filed an application before the Licence Appeal Tribunal – Auto Accident Benefits Service (“LAT”).
3A case conference took place on July 31, 2017 and an order was issued on August 17, 2017. A written hearing was scheduled for October 18, 2017, with applicant’s submission due by September 29, 2017 and respondent’s submission due by October 6, 2017.
4On September 15, 2017 a resumption of the case conference took place to address concerns regarding the applicant’s non-attendance at an insurer’s examination. However, the applicant and counsel were not present due to a family emergency and the case conference was adjourned to September 18, 2017.
5At the resumption of the case conference on September 18, 2017, an order was issued on September 21, 2017 adding the issue of the non-attendance to the hearing.
6On September 29, 2017, the applicant’s counsel filed a Request for Adjournment form requesting an “adjournment” of the submission dates due to electric issues in the building and inability to gain access to the files.
7The applicant filed their submissions with the Tribunal late in the evening on October 6, 2017. The respondent filed their submissions with the Tribunal on October 6, 2017.
8On October 17, 2017, the respondent brought a motion in writing advising that they did not have notice of the request to change the dates of the submissions and requested that the applicant’s claim be dismissed with costs payable by the applicant. In addition, the respondent takes the position that since they were not provided with notice by the Tribunal of the applicant’s extension to serve and file their submission (which they received on October 6, 2017, at 7:18 pm after their submissions were already filed) they should be given time and opportunity to respond to the applicant’s submissions.
9On October 18, 2017, a letter was sent from the Tribunal to the parties advising that submission dates were changed to October 6, 2017 for the applicant’s submission, October 13, 2017 for the respondent’s submissions and the applicant’s reply by October 20, 2017.
RESULT:
10The respondent’s request to dismiss the applicant’s claim is dismissed.
11The written hearing date is changed from October 18, 2017 to November 3, 2017.
12The respondent shall be allowed to serve and file Supplementary Submissions by October 27, 2017. These shall be limited to 10 pages and double spaced.
13The applicant shall be allowed to serve and file Supplementary Reply Submission by October 31, 2017. These shall be limited to 3 pages and double spaced.
14The respondent’s request for costs shall be added to the hearing adjudicator in writing as follows:
Is the respondent entitled to recover costs pursuant to Rule 19.1 of the Rules?
SUBMISSIONS
15The respondent submits that throughout these proceedings the applicant has continuously breached the Tribunal Orders and License Appeal Rules of Practice (the “Rules”).
16The respondent submits that since they were not provided with notice by the Tribunal of the applicant’s extension to serve and file their submission (which they received on October 6, 2017, at 7:18 pm after their submissions were already filed) they should be given time and opportunity to respond to the applicant’s submissions.
17The applicant has not filed any reply materials to this motion despite being served on October 17, 2017.
ANALYSIS AND DECISION
18The applicant filed a Request for Adjournment requesting an “adjournment” or more properly an extension of the submission dates that were set out in the Order issued on August 17, 2017. This was due to some exceptional and extenuating circumstances that appeared to be beyond counsel’s control directly related to loss of electricity in the building. The case management officer recognized the urgency of the request and allowed for the extension of the submission dates.
19The applicant’s request amounted to a variation of a Tribunal order. Preferably, this should have been done in accordance with Rule 15 by serving and filing a Notice of Motion together with a Certificate of Service. The Request for Adjournment form is utilized to request adjournments of case conferences, hearing or motions dates and not to change submission dates in Tribunal orders or to vary orders. When the Request for Adjournment form was filed it should have been returned to the applicant with instructions to serve and file a Notice of Motion and serve it on the other side. This was not done in this case. Perhaps out of expediency or to accommodate a reasonable request prompted by unforeseen circumstances. This error resulted to the respondent’s understandable confusion and frustration. However, the applicant should not have to bear the burden of the Tribunal’s administrative oversight.
20The applicant did serve and file their submissions on October 6, 2017, albeit late in the evening meaning that the pursuant to Rule 20.4 it was deemed to have been received the next day. However, to dismiss the applicant’s entire application based on the filing of the submissions late by one day would not be in the interest of fairness. Part of the mandate of the Tribunal is to provide a fair, impartial and efficient way to resolve disputes. I also do not see how the respondent was prejudiced by the extension of the submission dates, or the one day late filing of the submissions.
21The hearing shall proceed on its merits subject to allowing the respondent the opportunity to file supplementary submissions including the applicant to file brief supplementary reply submissions. In turn, this means that the written hearing date also has to be changed to allow for parties to prepare and file their submissions. The respondent is also allowed to raise the issue of costs in their supplementary submissions if they wish.
22No hearing adjudicator has yet been assigned to this matter.
23All remaining terms of the three prior issued orders shall remain in full force and effect.
Released: October 19, 2017
Cezary Paluch, Adjudicator