Tribunal File Number: 17-004104/AABS
Case Name: 17-004104 v Aviva Insurance
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:
D. N.
Applicant
and
Aviva Insurance
Respondent
MOTION DECISION AND ORDER
Order made by: Cezary Paluch, Adjudicator
Appearances:
For the applicant: Elvis Viskovic, Paralegal
For the respondent: Michael Baura, Counsel
OVERVIEW:
1A case conference took place on August 28, 2017, and an order was issued on August 30, 2017 scheduling a written hearing for October 30, 2017 (the “Order”).
2The Order required the applicant to produce to the respondent by September 15, 2017 the following:
i) applicant’s employment file;
ii) clinical notes and records of the applicant’s psychologist from one year prior to the motor vehicle accident to date; and
iii) clinical notes and records from the applicant’s family physician, Dr. Facy, from one year pre-accident to date.
3The Order also outlined deadlines for the parties to serve and file with the Tribunal their written submissions as follows:
i) applicant’s submissions by September 25, 2017;
ii) respondent’s submissions by October 9, 2017, and
iii) applicant’s reply by October 23, 2017.
4The applicant did not file his submissions by the September 25, 2017 deadline although he did file his submissions 15 days later on October 10, 2017. The respondent filed his submissions by October 9, 2017 (prior to having the benefit of the applicant’s submission).
5On September 29, 2017, the respondent filed a Notice of Motion requesting the following:
further productions;
further extension of time for respondent’s submissions; and
costs in the amount of $750.00.
6On October 16, 2017, the respondent filed an Amended Notice of Motion requesting the following:
dismissal of the applicant’s application; and
costs in the amount of $750.00.
7On October 20, 2017, the applicant filed responding motion materials opposing the motion and requesting $500.00 in costs against the respondent related to this motion.
8At the motion, the respondent also verbally requested an alternative remedy if their request for a dismissal was denied as follows:
enforcement of the production order; and
further directions to address the non-compliance with the Order in the form of extension of time to file additional submissions.
RESULT:
9The respondent’s motion is allowed in part. I make the following findings and orders:
The respondent’s request to dismiss the applicant’s Application is denied.
The written hearing date is changed from October 30, 2017 to November 20, 2017.
The respondent shall be allowed to serve and file Supplementary Submissions by November 10, 2017. These shall be limited to 10 pages and double spaced.
The applicant shall be allowed to serve and file Supplementary Reply Submission by November 15, 2017. These shall be limited to 5 pages and double spaced.
Any reference in the applicant’s submissions, reply, or supplementary reply submissions, to notes and records of the applicant’s family physician, Dr. Facy, and notes and records of the applicant’s psychologist, Dr. Nolan, shall be excluded from the hearing record.
The issue of costs shall be dealt with by the hearing adjudicator.
ANALYSIS AND REASONS:
10A motion was held on October 24 2017 by teleconference. These are the reasons for my decision.
Non-Compliance with the Order
1) Production of clinical notes and records of the applicant’s psychologist and family physician from one year prior to the motor vehicle accident to date of the case conference
11The respondent submitted that the applicant has failed to provide the notes and record from the applicant’s psychologist, Dr. Rob Nolan, and family physician, Dr. Facy, contrary to paragraph 3(ii) of the Order.
12In response, as I understand the applicant’s position, the applicant’s representative misinterpreted or misunderstood the Order and believed that there was psychotherapy information that was requested and not the notes and records of Dr. Rob Nolan who he has never heard of until this motion.
13With respect to the notes and records of the family doctor, Dr. Facy, the respondent stated that Dr. Facy’s notes and records up to August 2015 were provided (which was up to after the accident) but conceded that these records from that date until August 28, 2017 have never been provided to the respondent because of the time it would take to obtain them and prohibitive costs that the applicant was unable to incur. In addition, the applicant’s representative submits the notes and records were not relevant to the issues in dispute.
2) Failure to file Submissions by Date Set in the Order
14The Order required that the applicant serve and file their written submissions by September 25, 2017. At some point after the case conference, the respondent representative agreed to allow the applicant until September 29, 2017 to file his submission. However, the applicant still did not file his submissions until October 10, 2017. This was clearly in contravention of the Order (September 25) and the agreed upon extension amongst the parties (September 29). At the motion, the applicant representative did not have any explanation for the delay in filing his materials other than that he apparently sought some form guidance from the Tribunal. I simply note here that no motion was ever brought by the applicant requesting an extension to the submission date.
Request for Dismissal of Application
15Based on the failure of the applicant to file his submission on time and provide the required disclosure, the respondent’s primary position on this motion is that the applicant’s Application should be dismissed. The applicant relied on section 4.1(1)(c) of the Statutory Powers and Procedures Act (“SPPA”), that allows a Tribunal to dismiss a proceeding without a hearing if “some aspect of the statutory requirements for bringing the proceeding has not been met.” The respondent’s counsel submitted that the provisions in the Order constitute “some aspect of the statutory requirements” that have not been met. They did not cite any Tribunal decision or relevant case law to support this position.
16Rule 3.4 Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) reflects section 4.6 of the SPPA and provides as follows:
3.4 DISMISSAL WITHOUT A HEARING (GROUNDS FOR DOING SO)
The Tribunal may dismiss an appeal without a hearing if:
(a) The appeal is frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process;
(b) The appeal relates to matters that are outside the Tribunal’s jurisdiction;
(c) Any of the statutory requirements for bringing the appeal have not been met; or
(d) The party filing the appeal has abandoned the proceeding.
17My reading of section 4.1(c) of the SPPA and s. 3.4 of the Rules is that it relates to statutory provisions having not been met to entertain a dismissal request - not provisions in an order. In my view, a “statutory provision” is a specific section in a statute or law or regulation and not a provision in a Tribunal Order.
18Moreover, before dismissing an appeal, Rule 3.5 provides that the Tribunal must give the parties notice of its intention to dismiss, provide the reasons for its intended decision to dismiss, and inform the parties of their right to make written submissions to the Tribunal within the time limits set out in the notice, which shall be at least 10 days. There is good reason behind Rule 3.5 as to dismiss a claimant’s Application is a serious remedy that should be used sparingly with utmost caution in unusual circumstances. In this motion, this rule has not formally been complied with and therefore the applicant’s request to have the Application dismissed is denied.
19The Amended Notice of Motion was served on the applicant on October 16, 2017 (7 days before the motion hearing). The wording of the Notice of Motion Hearing sent to the parties refers to the respondent’s order for production, extension of time for the respondent’s submissions and costs but not to a request to dismiss. This is understandable as it was based on the original Notice of Motion dated September 29, 2017. When the amended Notice of Motion was filed it appears no new or amended Notice of Motion was ever provided to the parties. Rule 3.5(a) specifically requires for the Tribunal to give parties notice of its intention to dismiss. It could also be argued that the applicant did have proper notice regarding the dismissal request as his responding motion materials address the dismissal issue. I also note that even if a proper Notice of Motion was provided to the parties to comply with Rule 3.5, I would still not have dismissed the Application because the respondent did not satisfy any of the grounds in Rule 3.4.
Request for Enforcement of the Order/Further Directions
20The applicant’s alternative request in their motion is for the Tribunal to enforce the production of the medical records in the Order, further directions and costs to address the unique circumstances of this case given that the respondent filed their submissions without the required disclosure and without the benefit of having first received the application’s submissions.
21It is clear that the applicant has not provided the required medical notes and records to the respondent. I also note that the Order used the word shall in requiring the applicant to provide the disclosure to the respondent. The use of the word “shall” meant that this information was mandatory and the applicant had no discretion not to provide it without a further order of the Tribunal. Moreover, paragraph 1 of the Order confirms that the terms of the order were agreed to on consent of both parties. I do not accept the applicant’s explanation that the medical notes and records are not relevant for the purposes of the issues to be decided at the hearing. This was something that should have been dealt with at the case conference. Instead, the applicant agreed to provide the information.
22Disclosure is always important in insurance law cases. Disclosure is particularly important in this case, where there is a request for an award under Regulation 664 because the respondent withheld or delayed payment. Failure to make disclosure frustrates the Tribunal’s ability to determine the issues and the parties to make full and fair submissions. Tribunal Court orders should also be followed. When they are not followed, there should be consequences.
Remedy for Non Compliance with Order
23The Rules include provisions disclosure of documents. Rule 9.3(e) allows the Tribunal to order that a party to disclose any document or thing the Tribunal considers relevant to the issues in dispute. Rule 9.4 states that if a party fails to comply with any Rule or Order with respect to disclosure, that party may not rely on the document as evidence, without the consent of the Tribunal.
24The Applicant’s failure to submit the medical notes and records and his initial submission by the deadlines in the Order is in violation of Rule 9.3. The Order is clear with respect to the deadlines that were missed. However, if I was to exclude the applicant’s submission in their entirety, perhaps based on his representative misinterpreting the terms of the Order or for financial reasons related to the costs of obtaining the medical records, he would not be able to participate in the proceedings, and his application would likely be dismissed by the hearing adjudicator since he has the onus to provide his case. In this case, the applicant has already submitted his Submissions. To strike the appropriate balance between fairness and the importance of complying with Tribunal Orders, I will allow the applicant’s Submissions subject to the applicant not being able to rely on any notes and records of his family physician, Dr. Facy, or notes and records of the applicant’s psychologist, Dr. Nolan, and I strike or exclude such records from the hearing record.
25The respondent also has not had a chance to review and respond to the applicant’s initial submissions (as they filed their submissions prior). To ensure procedural fairness, the 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 time for parties to prepare and file their supplementary submissions.
Costs
26The respondent has requested costs in the amount of $750.00. They cite 16-16-000435 v Wawanesa Mutual Insurance Company,1 where costs were ordered against a party in the amount of $250.00 for failure to comply with a production order. In turn, the applicant in his submissions also requests $500.00 in cost related to this motion. I note that the respondent has asked for costs in his Written Submissions dated October 5, 2017 on essentially the same grounds as in this motion. The Tribunal does not have a specific rule that requires that costs be ordered and assessed at each step of the proceedings. Part of the mandate of the Tribunal is to provide a fair and efficient way to resolve disputes. One such way is to assess the issue of costs once ideally at completion of a hearing when there is a full and complete record. Therefore, the issue of costs regarding this motion will be dealt with by the hearing adjudicator. The partiers are also permitted to raise any additional submissions on costs in their supplementary submissions if they wish.
27All remaining terms of the Order remain in full force and effect.
Released: October 25, 2017