Licence Appeal Tribunal
Tribunal File Number: 17-006302/AABS
Case Name: 17-006302 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:
F. A.
Applicant
and
Aviva General Insurance
Respondent
MOTION DECISION
Adjudicator: Ian Maedel
Date of Decision: March 20, 2017
OVERVIEW
1The applicant was injured in an automobile accident on September 14, 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 September 25, 2017.
3A case conference took place on December 19, 2017 and an order was issued dated January 12, 2018. The issues in dispute include: an income replacement benefit (“IRB”) and interest. An in-person hearing was set for March 26, 2018 at 9:30 am in Hamilton, Ontario.
4On March 19, 2018, the applicant brought a motion in writing to seek the following relief:
i. The applicant requests an Order to add an award pursuant to s.10 of Ontario Regulation 664 of the Insurance Act;
ii. An Order for leave to examine the handling adjuster, Domonique Purpura, from Aviva Insurance at the hearing scheduled for March 26, 2018.
5Given the nature of the applicant’s submissions, it is not necessary to consider reply submissions from the respondent.
ORDER
6Section 10 of Ontario Regulation 664 of the Insurance Act states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum up to 50 per cent of the amount to which the person was entitled to at the time of the award together with interest.1
7An adjudicator has the inherent jurisdiction to add a “special award” at any part of the hearing process, even if not raised by the parties. The bar to add the “special award” as an issue in dispute is very low. The applicant has established that there may be a basis for the claim that the respondent failed to continually adjust the file and fulfill their obligations pursuant to ss. 36(4) and s. 37 of the Schedule, this may have in turn resulted in a delay of benefits. I find that the applicant has met this threshold and I will add this as an issue in dispute to the hearing set for March 26, 2018.
8Rule 8 of the Licence Appeal Tribunal Rules of Practice and Procedure (“Rules”) provides that the Tribunal may issue a summons at the request of a party. The requesting party shall provide a brief explanation of the witnesses’ anticipated evidence. There is no requirement that consent of the opposing party is required.
9The applicant has provided an explanation of the anticipated evidence of Domonique Purpura, adjuster from Aviva Insurance. Namely that the adjuster had carriage of the applicant’s file and continues in their obligation to assess the file. Given that the issue of a “special award” has now been added to the issues in dispute, the evidence to be proffered by the adjuster regarding the continued assessment of the file goes to the heart of the matter.
10It is the practice of the Tribunal to require the party requesting a summons for a witness not listed in the Case Conference Report or Order to bring a motion and proof of service on the opposing party. This provides the Tribunal with an explanation as to the witnesses anticipated evidence at hearing. This practice does not change the plain meaning of the Rule 8, which does not require input from the opposing party. Thus, the Tribunal shall make an Order for the issuance of a summons for Domonique Purpura, Adjuster from Aviva Insurance, and for her attendance at the hearing scheduled for March 26, 2018.
11All remaining terms of the Order of Adjudicator Sharma dated January 12, 2018, remain in full force and effect.
Released: March 20, 2018
Ian Maedel, Adjudicator