Safety, Licensing Appeals and Standards Tribunal Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto, ON M7A 1N3 In Person Service: 20 Dundas St. W., Suite 530, Toronto, ON M5G 2C2 Tel: 416-314-4260 / 1 800-255-2214 TTY: 416-916-0548 / 1 844-403-5906 FAX: 416-325-1060 / 1 844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416-314-4260 / 1 800-255-2214 ATS : 416-916-0548 / 1 844-403-5906 Téléc. : 416-325-1060 / 1 844-618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Jonathan Batty, Associate Chair Date: January 25, 2018 File: 17-001154/AABS and 17-001337/AABS Case Name: J.R. v. Coachman Insurance Company

Written Submissions By: For the Applicant: Gary Mazin For the Respondent: Harry Brown

Issue

1Following a lengthy round of procedural wrangling over what supplementary written submissions to put before an adjudicator, both parties have requested a reconsideration.

2The timely conclusion of these proceedings has been impeded by the fact that six prior orders, over a period of months, were necessary to address the timing, content, length, and sequencing of these supplementary written submissions.

3Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide these reconsideration requests.

4The parties’ wrangling has resulted in delay and absorbed an inordinate amount of adjudicative time. As I describe below, I am making an order to get this proceeding back on track. My order sets out when these supplementary written submissions are due, what they include, how long they will be, and in what order they are to be served and filed.

5In arriving at my decision, I have taken the following information into account.

Background: The Disputes over Supplementary Written Submissions

6Beginning on July 31, 2017, the Licence Appeal Tribunal (the “Tribunal”) held a three-day hearing in both of these matters under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). Adjudicator Shapiro presided over the hearing, which focused on this single issue: did the applicant, J.R., suffer a catastrophic impairment within the meaning of s. 3(2) of the Schedule?

7Prior to the hearing, a case conference order established the hearing’s length, while on the hearing’s last day the parties agreed to close their cases with 45 minutes of oral submissions followed by a five-minute reply. The initial case conference order did not schedule any written submissions.

8During oral submissions at the close of the hearing, the parties made different arguments on the standard of causation. For that reason, Adjudicator Shapiro ordered the parties to provide him with written submissions on that specific issue, which was confirmed in an order made on August 8, 2017 (“Order 1”).

9Order 1 required the parties to each submit no more than four double-spaced pages of submissions on two focussed questions: (1) the evidentiary burden the applicant had to meet to prove a catastrophic impairment related to the accident in question; and (2) the application of the material contribution or “but-for” test.

10The parties were ordered to file their submissions by August 10, 2017. At that point, the parties had each heard the other’s position on these questions and were basically being ordered to more fully explain their positions in writing.

11The proceedings then took an unfortunate turn.

12Believing the Tribunal had not received substantive submissions from either party within the time stipulated, Adjudicator Shapiro ordered on August 22, 2017 (“Order 2”) that the parties have permission to file more expansive written submissions. They were permitted to make submissions on the focussed questions stated in Order 1 and also, more broadly, “to highlight any key portions of the record, address any relevant jurisprudence, and make any argument in support of their case”. They could do so in no more than ten double-spaced pages.

13As the scope of written argument was broadened, the applicant (“J.R.”) was ordered to file these new submissions by August 28, 2017 and was given an additional five-page right of reply by September 14, 2017, while the new submissions of the respondent (“Coachman”) were ordered by September 6, 2017.

14What the adjudicator did not know when he made Order 2 was that, in fact, J.R.’s counsel had filed written submissions on August 8, 2017 to comply with Order 1. Because of an administrative error made by staff in the registrar’s office, however, the adjudicator was not given the submissions in their entirety; he was only given J.R.’s index. Coachman’s counsel had also contacted the Tribunal on August 8, 2017, asking for an extension to file his own written submissions under Order 1.

15After Order 2 was made, J.R.’s counsel contacted the Tribunal (copying Coachman’s counsel) to note that clearly a mistake had been made by the adjudicator as J.R. had filed written submissions in compliance with Order 1. Upon receiving that communication, staff in the registrar’s office determined they had not provided the filed information to the adjudicator.

16Following this acknowledged administrative error, in an attempt to get the proceeding back on track, Adjudicator Shapiro convened a case conference on August 25, 2017. At that case conference, the parties took diametrically opposed positions. J.R.’s counsel argued that the matter should be decided based on the four-page submissions he had filed in compliance with Order 1 and that the respondent was out of time to file anything else. In contrast, Coachman’s counsel argued that the terms of Order 1 were too restrictive and that even the 10-page submissions permitted by Order 2 were inadequate. Trying to strike an appropriate balance following this unfortunate turn of events, Adjudicator Shapiro made an oral order on August 25, 2017 that, as J.R.’s counsel had already filed written submissions but only on two narrow questions, he was allowed to file an additional ten pages, not limited to reply, by September 14, 2017. Coachman’s counsel was also permitted to file expanded submissions, but was instead ordered to do so by September 6, 2017 (i.e., before applicant’s counsel). It was at this juncture, therefore, that the typical sequence of applicant’s and respondent’s submissions was reversed.

17Neither party was happy with this result and neither waited for the order to issue before challenging it.

18Coachman’s counsel brought a motion dated September 6, 2017 to file 31 pages of written submissions (15 pages of argument and appended material totalling 16 pages), which he included in his motion record. J.R.’s counsel, in turn, sought a reconsideration of Adjudicator Shapiro’s oral order on August 25, 2017. The latter request was dismissed without prejudice to properly file a request once Adjudicator Shapiro’s order actually issued.

19On October 6, Adjudicator Shapiro issued his order arising from the August 25 teleconference (“Order 3”). By this time, however, the proceeding had stalled. The original schedule was no longer applicable due to this delay and neither party had filed the required submissions. Order 3 modified the schedule created on August 25, 2017 and reiterated the sequence and content of submissions that had been ordered. On October 6, 2017, the adjudicator also dealt with the outstanding motion from September 6, 2017 that was brought by Coachman’s counsel, and set a new schedule for the making of lengthier written submissions. This order (“Order 4”) permitted each counsel to file up to 15 pages of submissions (inclusive of appendices). Coachman’s counsel was ordered to file by October 23, 2017 and J.R.’s counsel by November 14, 2017.

20The outcome of Orders 3 and 4 had the effect of allowing the applicant to be able to include in reply submissions arguments that are normally required to be made in an initial submission. The consequence, in a situation like this, is that the opposing party has no ability to respond.

21Even before Orders 3 and 4 could be issued on October 6, 2017, Coachman’s counsel moved to strike the applicant’s right to make reply submissions. In an order issued on October 20, 2015 (“Order 5”), Adjudicator Shapiro denied that motion and reiterated the terms of Order 4.

22Following the issuing of Order 5, but before the deadline to file his submissions, Coachman’s counsel requested an extension of time to October 27, 2017 to file his submissions and, as he put it, have them coincide with a planned request for reconsideration of Order 3. This motion was not on consent but Adjudicator Shapiro agreed to this extension by way of an order dated October 26, 2017 (“Order 6”).

The Reconsideration Requests made by Each Party

23On October 27, 2017, each party requested reconsideration. They were each invited by the Tribunal to file any additional submissions by November 7, 2017, with the ability to respond to the other party by November 10, 2017.

24J.R. complied with the Tribunal’s order. His counsel did not file additional submissions but, after being served with Coachman’s additional submissions dated November 6, 2017, filed responding submissions by the stipulated deadline.

25Coachman did not fully comply with the Tribunal’s order. While Coachman’s counsel filed additional submissions on November 6, 2017, his responding submissions were filed on November 23, 2017, almost two weeks after the stipulated deadline without leave of the Tribunal. By waiting to do so, Coachman’s counsel afforded his client the opportunity to reply to J.R.’s November 10, 2017 reply submissions, which was not necessary, intended, or ordered. While I have considered these late submissions, I would note that the late submission and failure to adhere to the procedure ordered on this reconsideration has delayed its determination. As I will describe in more detail below, however, these late submissions have not assisted Coachman in the manner hoped.

26J.R.’s preferred relief, in effect, is that his four-page submission filed on August 8, 2017 be the only supplementary written submissions put before the adjudicator. In the alternative, J.R. asks that Coachman be limited to its own four-page submission. In the further alternative, J.R.’s counsel asks that I vary Order 6 to effectively bar Coachman from making closing submissions. From the reconsideration submissions received by the Tribunal, it is clear the applicant is frustrated by four things: the time this matter is taking to conclude; that Coachman’s counsel has been permitted to file expanded submissions; that Coachman’s counsel has failed to adhere to filing deadlines; and, Coachman’s counsel’s insistence on making 31 pages of submissions.

27In contrast, Coachman wishes the timing, content, length, and sequencing of supplementary written submissions to be entirely revisited. Coachman’s counsel submits that the only way his client can be heard is by, in essence, filing the sort of submissions he attached to a motion several weeks ago. The arguments made in support of this position go well beyond the four corners of a reconsideration request on an interlocutory procedural issue. Coachman’s counsel expresses frustration with the legislative scheme governing the Tribunal’s work, complains about the order from the initial case conference, is dissatisfied with the adjudicator’s management of the hearing, complains about his dealings with opposing counsel, and threatens judicial review. Many of his arguments would have been more relevant had Coachman been seeking reconsideration of a final decision. Sorting through these lengthy and late submissions has incurred delay.

28Having considered the history of these proceedings and the submissions of the parties, it is important to consider the function of the reconsideration process and its application in a situation such as this.

Rule 18: The Reconsideration Rule

29Rule 18 of the Rules of Practice and Procedure sets out the process for reconsideration. Under this Rule:

• Within 21 days of an interlocutory or final decision, either party may request reconsideration or the Executive Chair may reconsider a decision on his or her own motion (Rule18.1).
• To grant reconsideration (Rule 18.2), one or more of the following four grounds needs to be established:
  1. the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
  2. the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
  3. the Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or,
  4. there is new evidence that could not have reasonably been obtained earlier and would have affected the result.
• The request may be dismissed or, if the parties were afforded an opportunity to make submissions, the decision or order at issue may be confirmed, varied, cancelled, or all or part of the matter may be ordered to be reheard (Rule 18.3).

30Basically, the rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. If faced by such circumstances, the reconsideration process serves a curative role. In respect of final decisions or orders, it affords an opportunity for the Tribunal to correct a final decision made in error. In respect of interlocutory decisions or orders, it gives the Tribunal the necessary tools to get a proceeding back on track for a just and timely resolution.

31A party seeking a reconsideration, and indeed the Tribunal itself, has a high onus to meet to engage this remedy. Minor or inconsequential procedural or substantive mistakes do not qualify for reconsideration. It is only warranted in cases where an adjudicator has either made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

32A high onus makes sense because, once it has been met, the Executive Chair or her delegate has broad remedial powers to order a matter re-heard, or to cancel, confirm, or vary an order or decision.

Application of Rule 18 to these Proceedings

33This was an in-person hearing where two and a half days of evidence has already been heard, where final oral submissions were made, but no final decision has been reached. The matter before me concerns an interlocutory issue: the timing, content, length, and sequencing of supplementary written submissions.

34As things stands, there is considerable evidence and argument before Adjudicator Shapiro. For that reason, he appropriately granted the parties, in supplementary written submissions, the ability to summarize their legal arguments and point to the evidence on which they rely to ensure their positions are clearly set out.

35I am not prepared to grant the relief J.R. is seeking. When Order 2 invited the parties “to highlight any key portions of the record, address any relevant jurisprudence, and make any argument in support of their case” (emphasis added), the requested submissions lost their focus on the two narrow questions originally asked. The parties were invited to make new legal or evidentiary arguments. The adjudicator was entitled to make such an order. That said, the procedure ordered for making submissions violated the rule of procedural fairness.

36It is a basic rule that respondents have the right to respond to new arguments made by an applicant. By requiring Coachman to go first in making new arguments, Order 2 denied Coachman natural justice. It unfairly gave J.R.’s counsel the upper hand. He got to see Coachman’s arguments before finalizing his own and got to make his arguments unopposed.

37There are sound reasons why applicants go first in making submissions, as the adjudicator found in making his later procedural orders. This sequencing ensures all have an equal right to make their case. The problem in this proceeding was that Coachman was at a disadvantage not knowing precisely what J.R. would be submitting. Consequently, Coachman needed lengthier submissions to cover of all possible lines of argument made by J.R. From reviewing the many orders made, it appears to me that the adjudicator implicitly recognized this in his subsequent procedural rulings which, over the objection of J.R.’s counsel, is why the adjudicator substantially increased the page length for Coachman from four, to 10, to 15 pages. However, simply increasing this page length could not correct the denial of procedural fairness and natural justice caused by the incorrect sequencing of submissions.

38For the reasons noted above, I find that reconsideration is warranted, at this interlocutory stage in the proceedings, on the grounds the Tribunal “violated the rules of natural justice or procedural fairness.” As set out in detail below, I am ordering the parties to file new written submissions in accordance with the typical sequence of applicant going first, followed by the respondent, and concluded with a reply by the applicant. This should not prejudice either party as they will properly have time to hone their arguments and supporting materials.

39In reaching this decision, however, I note many of Coachman’s counsel’s arguments have been tangential.

40Coachman’s counsel asserts there is evidence in these proceedings that is at odds with the evidence from related matters being decided in a different forum. In turn, J.R. has had to respond to these submissions. It is premature to decide at this interlocutory stage whether or not any of this will materially affect the result. To decide that, I would have to hear new evidence and reconsider the whole case (not just a procedural issue) before the adjudicator has even made his final decision. I am also struck by three things:

• As revealed in a portion of the transcript of the last day of the hearing, Coachman’s counsel said he probably did not need his full time to make closing oral arguments.
• The need for supplementary written submissions only arose because of a specific request made by Adjudicator Shapiro. It was not raised by the parties as they each appeared to be content with how their case had been put before him.
• Coachman’s counsel asserts his client “found it impossible” at the time to comply with the adjudicator’s request for four pages of supplementary written submissions on the question of causation. In fact, the transcript shows not only that the prescribed limit was on consent but that Coachman’s counsel suggested this limit at the hearing as opposed to the longer one offered by the adjudicator, had no issue with providing submissions at the same time as J.R.’s counsel, and said that those submissions could be completed in a week.

41On the procedural questions before me, the Tribunal has received long and late submissions from Coachman’s counsel. It would have been of assistance if those submissions had been timely and focused. As Coachman’s counsel will note in my order below, I believe that his supplementary written submissions could similarly benefit by observing such requirements.

42Coachman’s counsel submits that his client can only be heard by filing very lengthy written arguments and appended information. While the adjudicator broadened the scope of supplementary written submissions, it appears to me that Coachman’s position is an indirect attempt to substantially alter the manner in which these matters are being heard. In other words, Coachman is indirectly trying to have all the legal and evidentiary issues (not yet decided) heard anew in a written format. I am not prepared to make an order to that effect.

43Until Adjudicator Shapiro is afforded the opportunity to finally decide the issue in these proceedings, it is not possible to determine whether or not anything that has transpired so far in the admission of evidence would affect the result.

Conclusion and Order

44I therefore deny J.R’s request for reconsideration, grant Coachman’s request to a very limited extent, cancel the Tribunal’s previous orders, and order as follows:

(a) Subject to an additional two pages of submissions on costs for each described in paragraph 45 below:

1. J.R. must serve and file new supplementary written submissions, limited to 15 pages, by February 7, 2018. These submissions will be considered by Adjudicator Shapiro in substitution of its four-page submission filed with Tribunal prior to August 10, 2017.
2. Coachman must serve and file its supplementary written submissions, limited to 15 pages, by February 14, 2018.
3. J.R. may file up to five pages, replying to Coachman’s submissions, by February 21, 2018.

No variations or extensions to this schedule will be permitted without first obtaining my leave, and any such requests must be made no later than three days before the date in question.

(b) Any appendices or other attachments submitted will be included in the page limits described in (a) above and may not be used to defeat those page limits.

(c) The supplementary written submissions:

1. Must address causation as it concerns: (i) the evidentiary burden the applicant had to meet to prove a catastrophic impairment related to the accident in question; and, (ii) the application of the material contribution or “but-for” test.
2. May highlight any key portions of the record, address any relevant jurisprudence, and make any argument in support of that party’s case.

(d) Any written legal arguments, which are included in the submissions referred to in (a) and (b) and in respect of costs in paragraph 45, must be on 8.5 by 11 inch single-sided pages and the text must be double-spaced 12 point font, with at least half inch margins.

(e) As set forth in the Tribunal’s previous orders, Coachman shall provide the Tribunal with a copy of the hearing transcript, assuming one has already not been filed.

45Finally, I am going to address the matter of costs. The record before me shows that each party has complained about delay and the conduct of the other throughout these proceedings, not just in this reconsideration request. In the circumstances, I would therefore reserve the issue of costs, for all stages of this proceeding, to Adjudicator Shapiro. To that end, the parties may submit up to two additional pages each, with their 15 pages of submissions due respectively on February 7 and 14, 2018, solely on the issue of costs. In total, so there is no confusion on this point, the parties may actually make up to 17 pages of submissions. However, if a party chooses not to make an additional two pages of written submissions on costs, it may not use any unused balance to add to its other 15 pages of supplementary written submissions.

Jonathan Batty Associate Chair Safety, Licensing Appeals and Standards Tribunals Ontario