Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Tribunal File Number: 17-003121/AABS
Case Name: 17-003121 v Allstate Insurance Company of Canada
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:
Applicant
Applicant
and
Allstate Insurance Company of Canada
Respondent
MOTION DECISION
ADJUDICATOR: Cezary Paluch
Appearances:
For the applicant: Sahereh Baghbani, Paralegal
For the respondent: Ashley Shmukler, Counsel
OVERVIEW:
1A case conference took place on July 11, 2017, and an order was issued on July 25, 2017 scheduling an in-person hearing for two days on October 30, 2017 and November 1, 2017 (the “Order”).
2The issues in dispute for the hearing as listed in the Case Regulation 664 or “special award”; and iii) interest.
3The Order lists the following witnesses for the applicant: i) the applicant; ii) Dr. Mazazade, chiropractor, iii) Dr. V. Joshi, chronic pain specialist; and iv) a psychologist to be named.
4On September 29, 2017, the applicant requested that two Summons to a Witnesses to be issued by the Tribunal for Douglas Young (“Mr. Young”)1 and Christopher Lun (“Mr. Lun”).
5On October 3, 2017, the Tribunal informed the applicant that the Order did not contain the name of either witness for applicant and that the Tribunal requires a party to submit a Motion where any intra-procedural action or order is requested.
6On October 6, 2017, the applicant filed a Notice of Motion requesting the following:
First, replace one witness, Dr. Mirzaesmaeeli2 with Dr. M. Curcio.
Second, name or identify Dr. Lotfalizadeh as the psychologist witness for the applicant.
Third, request that a summons be issued for Christopher Lun who is listed as a witness for the respondent (but not the applicant).
Add one additional witness, Douglas Young, for the hearing.
RESULT:
7I make the following findings and orders:
On consent, Dr. Mirzaesmaeeli is vacated as the witness for the applicant and replaced with Dr. M. Curcio.
On consent, Dr. Lotfalizadeh, psychologist, is added as a witness for the applicant.
The Tribunal shall issue a summons for Mr. Lun to the applicant upon the applicant complying with the formalities of Rule 8.2.
Mr. Young is not a necessary or relevant witness and will not be added to the witness list for the applicant.
ANALYSIS AND REASONS:
8A motion was held on October 19, 2017 by teleconference. These are the reasons for my decision.
Summons for Mr. Lun
9The applicant submitted that the respondent has failed to provide their index and/or witness list. My understanding of the applicant’s position is that the applicant is concerned that Mr. Lun may not be called as a witness at the hearing by the respondent and the applicant’s representative wants to ensure his attendance to be able to illicit evidence from him with respect to the “special award”.
10The respondent states that they did not believe it was necessary to confirm the names of the witnesses that were already listed in the Order and Case Conference Report and there is no need for the applicant to have a summons issued for Mr. Lun. I note that as of today’s date, a Summons to a Witness for Mr. Lun has not been request by the respondent from the Tribunal but a Summons to a Witness for the other two respondent witnesses, Dr. G. Lee and Dr. D. Rabinovitch have been requested.
11The Tribunal has discretion to issue a summons at the request of a party under s. 12(1) of the Statutory Powers Procedure Act (the “SPPA”) and Rule 8 of the Licence Appeal Tribunal Rules of Practice and Procedure, (the Rules). Sub rule 8.2 of the Rules requires a person requesting a summons to file a Request for Summons with the Tribunal. The Request shall provide a brief explanation of the information the witness is expected to give at the hearing. [emphasis added] The use of the word shall means that this information is mandatory and the Tribunal has no discretion in this regard.
12In this case, the applicant filed a request for a summons for Mr. Lun on September 29, 2017, with an enclosure letter that stated: “Good afternoon, May I please have the attached Summons to Witness executed at your earliest opportunity.” There was no further information provided in the letter regarding the information that the witnesses is expected to give at the hearing to comply with Rule 8.2. On the Summons to a Witness form the relationship of Mr. Lun to this case was described as “accident benefits adjuster.” Again, there was no other information about what evidence Mr. Lun was to provide at the hearing.
13I find that the information provided by the applicant in its request to issue the summons to Mr. Lun did not meet Rule 8.2 requirements on its face. However, to deny the applicant the opportunity to illicit evidence from Mr. Lun who is the adjuster on this file and one of the witnesses listed on the Order when one of the issues is an award under Regulation 664 would be unfair to the applicant.
14Therefore, upon the filing of a Summons to a Witness that complies with the formalities of Rule 8.2, the Tribunal will issue a summons for Mr. Lun.
Addition of Mr. Young as a Witness for the Applicant
15The applicant submits that Mr. Young who is the adjuster’s manager was involved in telephone discussions regarding the issues in dispute and settlement discussions.
16At the motion hearing, the applicant’s representative explained that one issue in dispute as part of this hearing is a “special award” and there were settlement discussions that took place where an offer was escalated to the manager, Mr. Young, and a condition placed on the offer that in the applicant’s view amounted to “bad faith.”
17The respondent is opposed to adding Mr. Young as a witness for the hearing for two reasons. First, they submit Mr. Young was not involved in the claim and there is no evidence regarding Mr. Young’s participating in any settlement discussions and therefore Mr. Young is not a relevant witnesses to any of the issues. Second, Mr. Young’s involvement would be inadmissible by reason of a settlement privilege.
18According to Rule 14.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, (the Rules), the purpose of the case conference is to direct the parties to consider:
e) Disclosure and the exchange of documents, including witness statements and expert reports;
19The case conference is the vehicle by which the hearing is structured. It informs the parties on how matters should proceed at the hearing. Listing the names of the witnesses is a primary purpose of the case conference and the parties are expected to be prepared to identify who they intend to call at the hearing and discuss how a witness is directly relevant to the issues in dispute. Indeed, the Case Conference Summary requires a party to list their proposed witnesses and provide a summary of what they will speak to. I note that the applicant’s Case Conference Summary that was received by the Tribunal on July 4, 2017 did not list Mr. Young as a proposed witness.
20The applicant is the moving party on this motion and must show how the proposed witness is necessary and relevant to be able to decide the issue of the “special award.” Here, the applicant did not provide any documentary evidence as to how Mr. Young was involved in this matter other than some general statements made in submissions. Submissions are not evidence. The applicant’s representative did make reference to some email communication but these were not provided to me. Here, the onus of proof rests on the applicant to prove that she is entitled to the relied sought in the Notice of Motion and it was incumbent on her to make available any relevant documentation to support her case.
21Rule 15 requires a party bringing a motion to deliver a Notice of Motion setting out: the grounds to be argued, including a reference to any statutory or regulatory provision, rule or case law relied on; and the evidence in support of the motion.
22In my view, the applicant has not adequately set out the grounds, referenced any rule or case law or most importantly provided sufficient evidence to support her position that Mr. Young is a necessary or relevant witness. Other than one very general statement in the Notice of Motion that Mr. Young “was involved in a telephone discussion regarding the issues and settlement discussions” there was no further evidence before me. This statement alone referencing what appears to be a singular telephone conversation is not sufficient proof and is lacking in substance and detail. Therefore, after considering the parties’ submissions, and information filed, I decided that Mr. Young is not necessary or relevant witness for the determination of the issues in dispute.
23As a result of my finding, I need not address whether any communication between the applicant and Mr. Young is inadmissible by reason of settlement privilege.
24All remaining terms of the Order remain in full force and effect.
Released: October 24, 2017