Tribunal File Number: 17-003500/AABS
Case Name: 17-003500/AABS v Aviva 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:
Robert Pagcaliwagan
Applicant
and
Aviva Insurance Company
Respondent
MOTION DECISION
ADJUDICATOR: Cezary Paluch
Date of Decision: January 19, 2018
OVERVIEW:
1The applicant was injured in an automobile accidents on March 18, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').
2On June 5, 2017, the applicant submitted an application to the Licence Appeal Tribunal – Auto Accident Benefits Service (“Tribunal”).
3A case conference took place on August 3, 2017 before Adjudicator Makhamra and an Order was issued on August 23, 2017, for an in person hearing on November 21. 22, 23 and 27, 2017.
4A further case conference took place on October 6, 2017, to address the parties’ motions and obtain clarification with respect to production issues and deadlines. A second Order was issued on October 31, 2017, changing the hearing to January 29, 30, February 1 and 2, 2018 (the “Order”). The Order also provided that the respondent provide any additional addendum/reports by January 12, 2018.
5On January 12, 2018, the respondent served the applicant with its hearing brief. However, the addendum reports were not served until January 15, 2018. Subsequently, in a letter dated January 16, 2018, the applicant advised the respondent that he is not prepared to admit service of the addendum reports and would oppose its introduction at the hearing.
6On January 17, 2018 the respondent filed a Notice of Motion and Schedule “A” to vary the Order to validate the late service of the addendum reports served on the applicant after the deadline.
7Due to my view of the relief sought in this motion, I have not asked the applicant to respond.
RESULT:
8The respondent’s motion is granted. The respondent‘s addendum reports served on the applicant on January 16, 2018 are admitted for the hearing.
RESPONDENT’S POSITION
9The respondent explains that given the holiday season there was a delay by the assessors in providing the addendum reports and that the insurer only received the addendum reports on January 15, 2018. The respondent submits that the documents were served “one day after the original deadline.”
10The respondent also explains that on January 12, 2018 (when the reports were due) they advised the applicant that addendum reports were not available and the insurer was in touch with the assessment company.
APPLICANT’S POSITION
11Due to my view of the relief sought in this motion and the imminent hearing date which has already been adjourned once, I have not asked the applicant to respond which could create further delay. This is a very technical and simple issue that the Tribunal routinely grants subject to any clear evidence of prejudice which cannot be cured.
12I understand from the materials field with this motion that the applicant is not agreeable to admit service of the addendum reports.
ANALYSIS AND REASONS:
13A motion was heard in writing on January 19, 2019. These are the reasons for my decision.
(i) Request to validate the late service of the addendum reports
14The Order and Case Conference Report both set out a schedule of dates for the parties to file their productions. The respondent’s addendum/reports were due by Friday, January 12, 2018.
15On Monday, January 15, 2018 the respondent emailed the addendum reports to the applicant at 10:48 pm in the evening.
16Rule 6.1(3) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure (the “Rules”), allows for service by email. Rule 6.2 also provides that where a document is served by a party, receipt is deemed to have occurred when served or sent by: (e) Email, on the day sent, or if sent after 5:00 PM service will be deemed to have occurred the next day that is not a holiday. Therefore, because the documents were emailed in the evening at 10:48 pm, service of the addendum reports was affected the next day on Tuesday January 16, 2018.
17Under the Rules a “day” is defined as a “calendar day”. However, Rule 5.2 further clarifies that that where the time for doing an act ends on a holiday, the act may be done on the next day that is not a holiday. A “holiday” means any Saturday, Sunday, statutory holiday, or other day on which the Tribunal’s offices are closed for business. Therefore, since service was deemed received on Tuesday, January 19, 2018, and Saturday and Sunday are excluded by virtue of these days being considered “holidays”, the reports were two days late.
18It is trite to say that Tribunal orders should be followed. When they are not followed, there should be consequences if there is no adequate explanation for the apparent violation and there is prejudice to a party. Here, it is clear to me that respondent’s counsel was doing all he could to get the addendum reports served and kept the applicant’s counsel well-informed of the situation throughout. I note that the Multidisciplinary Addendum Report and Physiatry Addendum are both dated January 12, 2018, and therefore, this was not a situation where there was a long delay between the time when the reports were finalized or issued and provided to the other party.
19Moreover, not to allow addendum reports which includes additional medical information based on the service of the reports being late by a mere two days would not be in the interest of fairness. I am of the view that if I were to decide that the respondent’s addendum reports were not admissible that decision would be disproportionate to the respondent’s minor breach of the Order, resulting in an unfair outcome. Also, the best evidence available should inform the Tribunal’s decision.1 The addendum reports may constitute such evidence. I also do not see how the applicant was prejudiced by the late service. This is not a situation where the documents were provided on the eve of a hearing and the applicant will not have enough time to review the documents.
20The Tribunal is committed to a fair, accessible and efficient hearing process that affords all parties an opportunity to present their case. Cooperation and goodwill amongst counsel plays a crucial role in meeting these objectives. I would have expected that a brief indulgence of a mere two days, without any clear prejudice to the applicant, given the recent culmination of the holiday season, was a reasonable request in these circumstances and something that counsel should have provided thereby avoiding the necessity of this motion.
21Therefore, based on the above reasons, the respondent’s motion is allowed.
22All remaining terms of the prior Tribunal orders remain in full force and effect.
Released: January 23, 2018
Cezary Paluch, Adjudicator
Footnotes
- N.Y. v. TD Insurance Meloche Monnex, 2017 CanLII 69446 (ON LAT) at para. 10.