Davood Mirzaie v. Wawanesa Mutual Insurance Company, 2017 CanLII 97567

Date: 2017-12-29

Tribunal File Number: 17-004584/AABS

Case Name: 17-004584/AABS v Wawanesa Mutual 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:

Davood Mirzaie

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

MOTION DECISION

Appearances:

Applicant: Davood Mirzaie

Counsel for the applicant: Gary Mazin

Representative for the respondent: Sanny Lan, Accident Benefits Representative

Counsel for the respondent: Karen Bernofsky

Adjudicator: Ian Maedel

Motion Hearing Date: December 21, 2017 (via teleconference)

OVERVIEW:

1The applicant was injured in an automobile accident on September 14, 2011 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 (“Tribunal”) on July 18, 2017.

3A case conference took place on September 4, 2017 and an Order was issued on that October 17, 2017. The issues in dispute include: a claim for attendant care benefit, medical treatment plan, cost of an exam, and interest.

4A three-day, in-person hearing was set for January 15-17, 2018, in Toronto, Ontario.

5On November 27, 2017, the respondent brought a motion in writing to request productions from the applicant.

6The respondent is seeking:

i. Production of 8 different items as outlined at paragraph three of the Order of Adjudicator Hans dated October 17, 2017;

ii. An additional production request for the following;

a. applicant’s employment file,

b. All of the applicants income tax returns following the accident,

c. The clinical notes and records of the Cannaboid Medical Clinic.

RESULT:

[7]

i. The respondent’s motion for further productions pursuant to the Order of Adjudicator Hans dated October 17, 2017 is denied;

ii. The respondent’s motion for additional productions is denied.

8Rule 3.1(b) of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) provides that the Rules shall be interpreted to ensure efficient, proportional and timely resolution of the merits of the proceedings before the Tribunal.

9The hearing dates were set on October 17, 2017 on consent of the parties with eight witnesses scheduled to provide evidence.

10Applicant counsel indicated that his firm has made best efforts to fulfil the production order and has provided all of the materials directly to the respondent. Applicant counsel is aware that evidence he plans to rely may be excluded at hearing if not produced to the respondent as per Rule 9.4

11The applicant was able to provide income tax returns via email to respondent counsel during the motion hearing proceedings. Applicant counsel indicated that he would provide best efforts to produce the records of the attendant care provider and other outstanding productions in advance of the hearing date.

12In the interest of efficient, proportional and timely resolution of the matter, I will not order any further productions. The Order, including productions was made on October 17, 2017. To order further productions at this stage, less than four weeks from the hearing date, would complicate the matters and further delay the hearing. The applicant has indicated he will make best efforts to provide outstanding productions in advance of the hearing date. The respondent’s motion for productions pursuant to the Order of October 17, 2017 is dismissed. Similarly, the motion for additional productions not included in the Order of October 17, 2017 is also dismissed.

13All remaining terms of the Order remain in full force and effect.