Tribunal File Number: 17-007777/AABS
Case Name: 17-007777 v Aviva General 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:
Applicant
Applicant
and
Aviva General Insurance
Respondent
MOTION DECISION
Decision made by: Ian Maedel, Member
OVERVIEW
1The applicant was injured in an automobile accident on March 9, 2015 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 November 10, 2017.
3A case conference was held on March 20, 2018 before Vice Chair White. An in-person hearing was set for September 10-14, 17-21, 2018 in Toronto, Ontario. Subsequently, an in-person Settlement Conference was also set for August 15, 2018, in Brampton, Ontario.
4The respondent filed a Notice of Motion on July 20, 2018 and sought the following relief:
a) An Order for the following third party productions:
i. The complete employment/placement file from North York General Hospital and/or Centennial College pertaining to the applicant’s practical nursing student placement at North York General Hospital, including attendance records and a description of the essential tasks of her employment/placement;
ii. The complete employment/placement file from Rouge Valley Health Systems and/or Centennial College pertaining to the applicants practical nursing student placement at Rouge Valley Health Systems, including attendance records and a description of the essential tasks of her employment/placement; and
iii. The complete file from George Brown College, including attendance records and transcripts.
b) An Order staying the proceeding until such time as the insurer receives the outstanding productions from third parties.
5The applicant did not provide any responding materials to the Notice of Motion and has provided no position with regard to the productions sought.
6The respondent submits that productions relating to the applicant’s employment and education are relevant to the issues in dispute, which include entitlement to non-earner benefits, attendant care benefits, housekeeping and home maintenance benefits in addition to a determination of catastrophic impairment. These documents are reasonable, material and necessary to evaluate the applicant’s claim on an ongoing basis.
7The matter was set for a Motion Hearing in writing on August 7, 2018.
ORDER
8A summons shall issue directing North York General Hospital to produce all documents pertaining to the applicant’s practical nursing student placement, including attendance records and a description of the essential tasks of her employment/training.
9A summons shall issue directing Centennial College to produce all documents pertaining to the applicant’s practical nursing student placement, including attendance records and a description of the essential tasks of her employment/training.
10A summons shall issue directing Rouge Valley Health Systems to produce all documents pertaining to the applicant’s practical nursing student placement, including attendance records and a description of the essential tasks of her employment/training.
11A summons shall issue directing George Brown College to produce any documents pertaining to the applicant’s education, including attendance records and transcripts.
12A summons can only be served on an identified person. The respondent shall provide the Tribunal with a name from each institution identified in its request to issue a summons.
13Rule 3.1 of the Common Rules of Practice and Procedure (“Rules”) mandate a procedurally fair process that is also efficient and proportional to allow a timely resolution of matters.
14The productions sought are relevant to a determination of the issues in dispute. The parties would be prejudiced if they were forced to proceed to a hearing without the benefit of these documents. These documents speak directly to the issues of applicant’s post-accident education and employment.
15The Tribunal’s Rules are silent with regard to third party disclosure requests. The only authority in the Tribunal is found sec. 12.(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990. CHAPTER S.22., which states:
“A tribunal may require any person, including a party, by summons, (b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceeding..”
16The Ontario Court of Appeal addressed summons for production in advance of a hearing in Ontario (Human Rights Commission) v. Dofasco Inc.1 Although the Court indicated the point was not argued and they expressed no final opinion the following paragraph provides useful guidance.
17In paragraph 51 of the decision the Court wrote to produce documents at hearing would inevitably lead to adjournments if they are produced for the first time at the hearing. The court made reference to section 2 of the Statutory Powers Procedure Act which provides that the Act and rules made under it “shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.”
18Rule 8 of the Rules speaks to the issuance of a summons. As per Rule 8.2, the respondent is entitled to summons a witness once they have provided the Tribunal with a brief description of the anticipated evidence. This is a low bar and witnesses are generally added if they can satisfy this low threshold. The respondent has satisfied the threshold as per Rule 8.2 in providing a description of the anticipated evidence of the unnamed witnesses from the institutions identified above.
19The motion for a stay of proceedings pending the receipt of these documents is dismissed. One of the Tribunal’s mandates is to ensure an efficient, proportional and timely resolution of matters on their merits pursuant to Rule 3.1(b). This accident occurred in March of 2015 and it is important to move forward with the application to determine accident benefits. The parties shall proceed with the settlement conference scheduled on August 15, 2018.
20The in-person hearing remains scheduled for September 10-14, 17-21, 2018 in Toronto, Ontario.
21All remaining terms of the Orders of Vice Chair White remain in full force and effect.
Released: August 9, 2018
_____________________________
Ian Maedel, Adjudicator