Interim Decision
Tribunal File Number: 16-002815/AABS
Case Name: 16-002815 v The Personal 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:
C.J.
Applicant
and
The Personal Insurance Company of Canada
Respondent
INTERIM DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
Applicant: C.J.
Counsel for the Applicant: Andrew Kerr, Counsel
The Applicant’s Father, L.J.
Counsel for the Respondent: Kathleen Mertes, Counsel
Teleconference Hearing: March 16, 2017
OVERVIEW:
1The applicant was injured in a motor vehicle accident on February 24, 2014. He applied for accident benefits to the Personal Insurance Company of Canada (“Personal”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). Personal denied his claim. The applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefit Services.
2This decision deals with two separate hearings in which I was assigned as the Hearing Adjudicator. One was a written hearing on a preliminary issue scheduled for March 2, 2017. The second was a hybrid hearing to take place in writing and by teleconference on March 16, 2017.
As a result of the hybrid hearing on March 16, 2017, the following preliminary issues were raised:
a. the applicant’s request for an extension of time to file submissions,
b. the request for an adjournment of the teleconference hearing raised at the commencement of the hearing on March 16, 2017,
c. the respondent’s request for an order for costs, and
d. whether the Tribunal should admit evidence filed by the applicant in non-compliance with a Tribunal Order.
BACKGROUND:
3A case conference was held on December 14, 2016. The Tribunal issued an order dated December 20, 2016, scheduling two separate hearings:
First, a preliminary hearing was scheduled in writing on March 2, 2017, to deal with whether the applicant was time barred from proceeding with his claim for income replacement benefits (“preliminary hearing”).
Second, a hybrid hearing was scheduled to take place by teleconference on March 16, 2017 to deal with the denial of treatment plans for medical benefits and costs of examination (“hybrid hearing”). The purpose of the telephone portion of the hybrid hearing was to allow cross-examination on affidavit evidence.
4The December 20, 2016 order outlined the deadlines for the parties to file submissions and evidence with respect to both the written hearing on the preliminary issue and the hybrid hearing to address the treatment plans.
5The applicant was to file submissions on both the preliminary issue hearing and hybrid hearing by February 16, 2017.
6On January 13, 2017, the Tribunal sent a Notice of Hearing to the parties confirming the hearing details and deadlines for submissions.
7The respondent filed submissions and evidence as per the deadlines given in the Tribunal’s order. The applicant did not file submissions in relation to either the written or the hybrid hearing.
8On February 17, 2017, the respondent wrote to the applicant advising that they had not received any submissions in relation to either hearing.
9On February 23, 2017, the Tribunal contacted the applicant’s representative to inquire about their intention to proceed as they had not filed any submissions. The Tribunal spoke with the representative’s assistant who confirmed an intention to proceed, and left a voicemail for the applicant’s counsel.
10On March 14, 2017, the Tribunal received correspondence from the applicant’s representative indicating that he had not been in touch with the Tribunal due to illness and requesting an extension to file submissions. This letter also enclosed a FSCO Report of Mediator dated June 21, 2016 in relation to the written preliminary hearing that was scheduled for March 2, 2017. The applicant had only recently provided this report to the respondent.
11On the same date, the Tribunal received correspondence from the respondent opposing the applicant’s request for an extension to file submissions and opposing acceptance in evidence of the Report of Mediator. The respondent cited Rule 9.4 of the Tribunal’s Rules of Practice and Procedure which deals with the Tribunal’s discretion to not accept evidence that is in non-compliance with the Tribunal’s Rules and Orders. In addition, the respondent indicated an intention to formally request an Order for costs for the applicant’s failure to advise the Tribunal of his medical condition in a timely manner and his subsequent request for an extension to file submissions.
Adjournment Request
12On March 16, 2017, the day of the scheduled hybrid hearing, a teleconference was held with the parties. The applicant’s representative advised that he was not prepared to proceed with the hearing and asked for an adjournment. I asked the applicant’s representative why he had failed to request an extension to file submissions or file a proper request for an adjournment. The applicant’s representative advised that he has had various medical issues and most recently an illness that rendered him completely unable to work. He indicated that he could provide a doctor’s note confirming same. I asked that he provide the Tribunal with a medical certificate no later than March 23, 2017.
13I further inquired about why he did not provide instructions to someone at his office to communicate his health issues to the Tribunal and request an extension and adjournment. He replied that he is unfamiliar with Tribunal work and got the dates of the written and preliminary hearing mixed up.
14After hearing the parties submissions, I granted the request for an adjournment of the hybrid hearing. In coming to this decision, I considered the principles of procedural fairness and the disadvantaged position that the applicant would be in if he was forced to proceed in the absence of the ability to file any submissions or evidence. I reminded the applicant about the Tribunal’s commitment to providing a fair open and accessible process that is also timely. I also cautioned the applicant about any further delays. To balance the rights of the respondent, I have given it the opportunity to provide submissions on costs. Details with respect to the new dates and deadlines for submissions follow in the attached order.
ORDER:
1I order the following:
PRELIMINARY ISSUE HEARING:
2The issues raised at the March 16, 2017 hybrid hearing are as follows:
a) Should the Tribunal grant the applicant an extension to file submissions in relation to the preliminary issue hearing?
b) Should the Tribunal allow the applicant to file the Report of Mediator dated June 21, 2016 as evidence?
c) Is the respondent entitled to costs for both the written preliminary hearing scheduled for March 2, 2017 and the hybrid hearing scheduled for March 16, 2017 pursuant to Rule 19 of the Licence Appeal Tribunal’s Rules of Practice?
DEADLINES FOR SUBMISSIONS:
3The parties will exchange and file evidence and written submissions on the preliminary hearing as follows:
a) The respondent’s submissions and evidence are due on March 31, 2017.
b) The applicant’s submissions and evidence are due on April 13, 2017.
c) Submissions will be a maximum of 10 pages, double spaced, 12 point, Arial or Times New Roman font.
HYBRID HEARING:
4The hybrid teleconference was adjourned to May 10, 2017, at 9:00 a.m. by teleconference.
5The parties will exchange and file evidence and written submissions on the hybrid hearing as follows:
a) The applicant’s evidence and submissions are due on April 5, 2017.
b) The respondent’s evidence and submissions are due on April 19, 2017.
c) The applicant’s reply submissions are due on May 3, 2017.
d) Submissions will be a maximum of 10 pages, double spaced, 12 point, Arial or Times New Roman font.
6All other terms of the December 20, 2016 order remain in full force and effect.
Released: March 24, 2017
Rebecca Hines,
Adjudicator