Tribunal File Number: 18-000655/AABS
Case Name: 18-000655 v Echelon General 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:
K.B.
Applicant
and
Echelon General Insurance Company
Respondent
MOTION DECISION
Order made by: Terry Hunter, Vice Chair
Date of the Decision: August 8, 2018
Appearances: Pamela Rowatt, Applicant’s Counsel Stan Savvateikine, Respondent’s Counsel
Hearing by Teleconference: July 31, 2018
OVERVIEW
1The applicant was injured in an automobile accident on June 3, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
3A case conference was held on May 16, 2018. An Order was released on July 5, 2018 ordering a written hearing set for August 20, 2018.
4On July 12, 2018, the applicant brought a motion before the Tribunal to vary the Case Conference Order to permit the use of affidavit evidence and for an Order permitting amendments to the written hearing submissions of the applicant referencing the affidavit evidence.
5Paragraph [6] of the Order of Adjudicator Norris states; “Affidavit evidence will not be permitted in the hearing.”
6The applicant in their motion submissions states there was no discussion at the case conference regarding the use of affidavit evidence. The respondent in their materials state the use of affidavits was not raised at the case conference by the applicant.
RESULT
7For the reasons set out below, I find as follows:
(i) The Case Conference Order will not be varied to permit the use of affidavit evidence by the applicant.
REASONS
8The Tribunal often varies case conference orders. It is done on consent to correct minor errors, and when the order is silent on an issue which is germane to the hearing process. I am unable to find a precedent where on a motion an adjudicator deciding the motion has overturned a direct order of the case conference adjudicator. It is my view that when a request to vary challenges an explicit order made by the case conference adjudicator it has to be by way of a reconsideration under Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”).
9The decision to use the written hearing format is based on a review of the issues in dispute and is an attempt to use a process that is efficient and proportional to the issues. To import into the written hearing format affidavit evidence is to open the door for requests to cross-examine affiants or allow competing affidavits. This distorts the aim of the case conference adjudicator to tailor an appropriate process for the hearing.
10The applicant makes reference to a number of Tribunal decisions that have found submissions are not evidence. Those decisions are predicated on a finding that the submissions do not have an evidentiary basis. If that is the case, the submissions would be deficient.
11In this case there is documentary evidence, including an Occupational Therapy Assessment Report which records the applicant’s subjective complaints. This documentary evidence is the best foundation for the applicant’s submissions.
12All other provisions of the Order of Adjudicator Norris remain in effect.
Released: August 10, 2018
Terry Hunter, Vice Chair