S. M. v. Motor Vehicle Accident Claims Fund (MVACF), 2017 CanLII 87161

Date: 2017-12-19

Tribunal File Number: 17-001681/AABS

Case Name: 17-001681 v Motor Vihecle Accident Claims Fund (MVACF)

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. M.

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

MOTION DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Stephen Birman, counsel

For the Respondent: Robert Kerkmann, counsel

HEARD: In writing December 15, 2017

BACKRGOUND:

1The applicant was involved in an accident on May 1, 2015 and sought statutory accident benefits from the Motor Vehicle Accident Claims Fund (“MVACF”). MVACF provides payment of benefits to injured people who do not have automobile insurance.

2An in-person hearing was held on October 16-19, 2017. Prior to the hearing the applicant filed two motions on October 3 and 13, 2017, asking for the Tribunal to amend the order of Adjudicator Purdy dated June 27, 2017. A decision was made that the motions would be dealt with by the hearing Adjudicator.

ISSUES:

3The applicant seeks an order for the following:

a) To add costs pursuant to Section 19 of the Licence Appeal Tribunal’s Rules of Practice and Procedure (“LAT’s Rules”) to the issues in dispute;

b) To add an award pursuant to Section 10 of Ontario Regulation 664, R.R.O. 1990 (“O. Reg. 664”) to the issues in dispute;

c) Production of the Motor Vehicle Accident Claims Fund’s (“MVACF”) file;

d) Production of all correspondence between MVACF and ClaimsPro and the insurer assessment company, Benchmark;

e) Production of all correspondence between Benchmark and its independent assessors in handling the claim; and

f) An order that the ClaimsPro adjuster handling this claim, Mr. Asad Ullah, attend the hearing to be cross-examined.

4At the hearing, I asked the parties to file written submissions in order to provide the respondent with adequate time to address the new issues raised by the applicant.¹

5The respondent’s written submissions raised additional issues, so the Tribunal sent the parties a Notice of Written Motion Hearing Continuation requesting that the parties file further submissions to address the following issues:

a) Does the Licence Appeal Tribunal (the “LAT”) have jurisdiction to order the production of MVACF’s file or is MVACF exempt from submitting to documentary or oral discovery pursuant to s.71 of the Legislation Act, 2006, S.O. 2006, c.21 and s.8 of the Proceedings Against the Crown Act?

b) Should the applicant have provided notice of this motion to Benchmark since the applicant is requesting production of its file pursuant to the Rules of Civil Procedure?

RESULT:

6For the reasons that follow, I order the following:

a) The applicant’s request to add costs pursuant to Section 19 of LAT’s Rules and an award pursuant to O. Reg. 664 are added as issues;

b) The LAT has jurisdiction to order the production of MVACF’s file. MVACF is not exempt from producing its file and giving evidence at a LAT hearing. Therefore, I order that MVACF produce a copy of its file to the applicant up to the date of the LAT application by January 12, 2018.

7In MVACF’s reply submissions, it agreed to the following:

a) Produce all correspondence between ClaimsPro and the insurer assessment company, Benchmark. MVACF confirmed that it did not correspond directly with Benchmark;

b) Request Benchmark’s correspondence with its assessors and provide it to the applicant. The applicant agreed to this proposal in his reply submissions.

c) MVACF will provide the above-noted records by January 12, 2018.

d) The respondent agreed that it would call Mr. Asad Ullah as a witness should the award issue be added. This witness is therefore summoned to appear at the next hearing date.

8While the applicant requested Benchmark’s entire file, I agree with MVACF that the scope of those records should be limited to the issues in dispute. Since the respondent agreed to produce these records, I do not find it necessary to address whether Benchmark should have been served with notice of the applicant’s motion. However, I will point out that the LAT is not bound by the Rules of Civil Procedure.

ANALYSIS:

Is the applicant’s request for an award and costs added as issues in dispute?

9The applicant’s request to have an award and costs added as issues is granted for the following reasons:

10Section 10 of O. Reg. 664 provides that if the LAT finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled …²

11Rule 19.1 of LAT’s Rules provides that a party may request costs if they believe that the other party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

12The applicant argues that there is nothing in the Insurance Act, LAT’s Rules, the Statutory Accident Benefits Schedule³ or O. Reg. 664 that sets out timelines for when an award or costs can be added as an issue. In addition, the applicant contends that the respondent had ample notice of his intention to raise the issue of an award, as it was addressed in his opening written submissions filed October 2, 2017 as well as in the notice of motion filed October 3, 2017.

13The respondent maintains that an award should not be added so late in the process as it was not ticked off on the application and it would be procedurally unfair. For example, the respondent has not had the opportunity to investigate, assess and make decisions with respect to the evidence it would present. Further, it would not promote the fair, efficient and timely resolution of disputes.

14I agree with the applicant that there is nothing in the Insurance Act, the Schedule, O. Reg 664 or LAT’s Rules that provide deadlines for when an award or costs can be added. I agree with the applicant that the respondent had notice of the applicant’s request for an award as it was in his submissions and the motion material filed approximately two weeks prior to the hearing.

15Finally, I find the respondent is not prejudiced by this decision, as it will have ample time to prepare submissions. Therefore, I grant the applicant’s request to add the award and costs and will hear submissions on the next hearing date.

Does the LAT have jurisdiction to order the production of MVACF’s file? Is MVACF exempt from submitting to documentary or oral discovery?

16The LAT has jurisdiction to order the production of MVACF’s file. MVACF is not exempt from complying with LAT’s orders for the production of its file, nor is it exempt from providing witness testimony for the following reasons:

17The respondent argues that the LAT does not have jurisdiction to order the production of its file, as the respondent is an office of the Ontario government and is represented by Her Majesty the Queen in Right of Ontario (“HMQ”). The respondent submits that ordering production of its file is a form of discovery and at common law, the Crown is exempt from the obligation to provide documentary evidence or oral discovery.⁴

18The respondent maintains that the Legislation Act supports that no act or regulation binds HMQ unless it expressly states an intention to do so.⁵ Further, it argues that the legislation that provides the LAT with its powers to order the production of documents does not expressly confer these powers in relation to HMQ.⁶ Therefore, the right to discovery does not override the common law exemption of HMQ.

19While I find the respondent’s argument creative, I did not find it persuasive. The purpose of the MVACF is to protect vulnerable individuals who have been injured in accidents and who do not have insurance. MVACF is the last resort for individuals who have been injured in an accident when all other options have been exhausted. I agree with the applicant’s argument that MVACF is treated as an insurer, and is bound by the Schedule and the dispute resolution process as set out in section 268 of the Insurance Act.⁷

20MVACF’s purpose is further confirmed in section 6.1 and 6.2 of the Motor Vehicle Claims Act, which states that if a person has recourse against MVACF, any reference to an insurer in section 268 shall be deemed a reference to MVACF.⁸

21MVACF relied on Mitchell v. HMQ as represented by the Minister of Finance, [2017] ONSC 6238, as authority. I found this case distinguishable, as it involved both a tort claim and a dispute involving statutory accident benefits. Further, it included an action against the Superintendent of the Financial Services Commission of Ontario for damages and bad faith. Because this was a claim for bad faith and damages, the court found that the plaintiff did not comply with the notice provisions in section 7(1) of the Proceedings Against the Crown Act.⁹ Consequently, the court found the Crown was exempt from discovery, as the plaintiff did not give the Crown adequate notice pursuant to PACA.¹⁰ That is not the case before me.

22The LAT is not bound by the Rules of Civil Procedure, nor do the same laws pertaining to evidence or examinations for discovery apply to administrative Tribunals. I agree with the Court of Appeal’s decision in Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund (2007 ONCA 61) (“Allstate”), submitted by the applicant. The court held that for the purpose of paying accident benefits, MVACF is an insurer. The court did not distinguish MVACF’s responsibility to pay benefits from its liability to pay them. The court found that this would contradict the purpose of the Schedule. I agree.¹¹

23In my view, MVACF’s file is an accident benefits file. It would not be in line with the principles of natural justice for an individual who has been denied benefits to not have the opportunity to examine the decision maker’s process and reasons for denying those benefits, which are contained in the accident benefit file. While the adjuster from ClaimsPro was responsible for adjusting the file, his authority and directions came from MVACF. While the applicant was delayed in making the request for MVACF’s file, I do not feel the respondent is prejudiced as they know what the file contains and will be able to provide submissions at the next hearing date. Therefore, I find MVACF’s file relevant to the issues in dispute and order that it be produced.

ORDER:

1The LAT has jurisdiction to order the production of MVACF’s file;

2I order that MVACF produce a copy of its file to the applicant up until the date of the LAT application, subject to privileged communication, by January 12, 2018;

3MVACF will produce to the applicant all correspondence between ClaimsPro and the insurer assessment company, Benchmark, pertaining to assessors Dr. Margolese and Ms. Penny Briggs as well as any communication with respect to the benefits in dispute by January 12, 2018.

4MVACF will request Benchmark’s correspondence with its assessors regarding the issues in dispute by December 29, 2017, and will provide it to the applicant upon receipt.

5Should Benchmark refuse to provide these records, I hereby give notice that I will summon a representative from Benchmark to attend before the Tribunal at the next hearing date and request that representative to bring a complete copy of their file.

6Mr. Asad Ullah is summoned to appear at the next hearing date.

Released: December 19, 2017

___________________________

Rebecca Hines, Adjudicator

Licence of Appeal Tribunal’s Rules of Practice and Procedure, Rule 9.1 Licence of Appeal Tribunal Act, 1999, S.O. 1999, c.12. Schedule G Statutory Powers and Procedures Act, R.S.O. 1990, c. S. 22

Footnotes

1. 1The applicant’s motions raised additional procedural issues which were addressed at the hearing and will be in my decision on the substantive issues.
2. 2O. Reg. 664, S.10.
3. 3O. Reg. 34/10.
4. 4Attorney General of Canada v. Thouin, 2017 SCC 46, [2017] S.C.J. No. 46, paras 16-17.
5. 5Legislation Act, 2006, S.O. 2006, c.21, Schedule F.
6. 6The powers which confer this power to the LAT are provided by the following:
7. 7Insurance Act, R.S.O. 1990, c.18, S.268.
8. 8Motor Vehicle Accident Claims Act, R.S.O. 1990, Chapter M.41.
9. 9Proceedings Against the Crown Act, R.S.O. 1990, c.P.27, S 7 (1).
10. 10Mitchell v. HMQ as represented by the Minister of Finance, [2017] ONSC 6238, at para 14.
11. 11Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2007 ONCA 61, at para 39.