Tribunal File Number: 17-006903/AABS
Case Name: 17-006903 v Aviva Insurance 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:
K.B.
Applicant
and
Aviva Insurance Canada
Respondent
Motion Decision
Order made by: Terry Hunter, Vice Chair
Date of the Order: March 21, 2018
Motion Hearing by teleconference: March 7, 2018
Appearances:
Applicant: K.B.
For the Applicant: Imtiaz Hosein, Counsel Nathan Tischler, Counsel
For the Respondent: J.C. Rioux, Counsel
Motion
1The applicant brought a motion dated February 14, 2018 for a resumption of the case conference held on January 18, 2018.
2A resumption of the case conference is required the applicant submits to obtain further orders prior to the hearing. The orders sought are:
- To add an award pursuant to s. 10 of Ontario Regulation 664;
- For further productions to be provided by the respondent;
- To change the format of the hearing from written to in-person;
- To add interest to each issue in dispute;
- To add witnesses to the hearing.
3The respondent opposes the motion.
Result:
4I order a resumption of the case conference to deal with the orders sought by the applicant.
5I also order the format of the hearing be changed to an in-person hearing. The length and date for the hearing to be set at the case conference resumption.
Reasons:
6A case conference was held January 18, 2018 before Adjudicator Sharma. The Report and Order, dated January 25, 2018, provide for a written hearing on the consent of the parties. They contain no reference to a request from the applicant to add an award under Section 10 of Reg. 664 or a request for the production of adjuster’s log notes.
7The respondent argues that the applicant’s request by motion to challenge a case conference order is barred by the doctrines estoppel and res judicata or in the alternative is it more properly a reconsideration. The respondent’s position on the motion is set out in their written submission of February 22, 2018 and the affidavit of Jessica Bacopulos, sworn February 22, 2018.
8Paragraph 7 of the Bacopulos affidavit states that all issues sought by the applicant were discussed in detail at the January 18, 2018 case conference and were disposed of. The requests of the applicant to add an award and get an order to produce the adjuster’s log notes, it is suggested, were considered by the case conference adjudicator and rejected. The respondent argues that because of this, the doctrines of res adjudicata and issue estoppel apply.
9Issue estoppel applies if the following criteria are met:
a) The same question has been decided; b) The decision under review is final; and c) The parties are the same.
10I turn to a consideration of the three criteria. It is not clear that adjudicator Sharma decided the questions at issue. The Report and Order are silent. Although the uncontested affidavit of Ms. Bacopulos describes the issues as argued at the case conference and disposed of, that is not conclusive. The failure to deal with issues regularly dealt with in case conference reports and orders may have been caused by a number of factors including human error or mistake.
11Is the decision under review final? It was conceded at the motion hearing by the respondent that the issue of an award can be added at any time in the proceedings. The applicant in support of the motion has provided particulars of the claim for an award and I find it can be added after the conclusion of the case conference and any time up to the conclusion of the proceedings. Whether the case conference adjudicator disposed of the request to add the award or merely overlooked it is not of importance if it can be added at any time. I find the decision was not final.
12It flows from the finding that the decision is not final that the issue of productions of the respondent’s log notes and other request becomes a live issue. The applicant is entitled prior to the hearing, to have these production requests considered by the Tribunal.
13[17 The Tribunal, in keeping with its mandate pursuant to Rule 3.1 of the Common Rules of Practice and Procedure facilitates a fair, open and efficient process. The Tribunal routinely makes motion orders and decisions that change the case conference reports and orders. To adopt an excessively rule-bound and rigid process would not be in keeping with the Tribunal’s mandate.
14The applicant takes issue with the format of the hearing. The applicant submits that the failure to include in the Notice of Written Hearing the statement required by Section 6(4)(c) of the Statutory Powers and Procedures Act renders the notice invalid and by extension the written hearing. The written hearing was on the consent of the parties as set in the case conference Order. Does consent vitiate the failure of the Tribunal to provide the required notice? I will not decide that question because it is my view that the issues in dispute are complex and a written hearing with submissions limited to ten pages does not do justice to the applicant.
Order:
15I order that the applicant is entitled to a case conference resumption to set this matter for hearing.
16I order the hearing format be changed to an in-person hearing, length and date for the hearing to be set at the case conference resumption.
Released: April 4, 2018