17-009004 v Unifund Insurance Company, 2018 CanLII 83530

Licence Appeal Tribunal

Date: 2018-08-24

Tribunal File Number: 17-009004/AABS

Case Name: 17-009004 v Unifund 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:

Applicant

Applicant

and

Unifund Insurance Company

Respondent

Reconsideration Decision

Decision made by: D. Stephen Jovanovic

Date of Decision: September 11, 2018

Overview

1The respondent has delivered a request for reconsideration of part of a decision made by external counsel for the Tribunal during a Case Conference conducted on April 17, 2018. During the Conference the parties identified the following preliminary issue:

Is the applicant precluded by section 55(1)(2) of the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the Schedule) from proceeding with his Application to the Tribunal because he failed to attend the insurer’s examinations under section 44.

2Submissions in support of the request for reconsideration were made in writing by the respondent but no submissions were received from the applicant despite having received notice of the request.

3At the Conference, the respondent requested a determination of this preliminary issue before the hearing of the application on the merits. The decision, however, directed that “The preliminary issues shall be heard with the issues in dispute.” The in-person hearing was scheduled to take place on September 5 and 6, 2018. It is not clear from the decision why the respondent’s request to have the preliminary issue determined first, before the hearing of the merits of the application, was denied.

4For the reasons that follow the request for reconsideration is granted.

Background

5The applicant was involved in a motor vehicle accident on October 5, 2015 and sought benefits from the respondent in accordance with the Schedule. The benefits in dispute were detailed in paragraph [5] (i) through (xiii) of the Conference report. Paragraphs [9], [10] and [11] deal with production issues, stated to be on consent, the exchange of documents and the witnesses to be called by both parties. The applicant was to call two witnesses including a chiropractor while the respondent was to call two witnesses, a psychologist and a family physician.

The request for reconsideration

6In its request for reconsideration, made pursuant to rule 18 of the Tribunal’s Rules of Practice and Procedure, the respondent submitted that during the Conference a request was made on its behalf to have the preliminary issue heard in advance of the hearing on the merits.

7The respondent now submits that the part of the decision dealing with the preliminary issue was made outside the jurisdiction of the external counsel who conducted the Conference and that it was made in violation of natural justice and procedural fairness.

8The respondent’s principal submission is as follows:

If it is successful on the preliminary issue the hearing of the application cannot proceed. The application will either be dismissed or stayed. In these circumstances, both parties as well as the Tribunal will have prepared and incurred costs for a full hearing that is no longer proceeding. This is a breach of natural justice.

If it is not successful, it will be precluded an opportunity to either correct its notice requesting that the applicant attend an Insurer Examination and/or obtain further medical evidence to evaluate the issues in dispute. This is highly prejudicial to the respondent. This is a breach of procedural fairness and natural justice.

Analysis

9As indicated above, no reasons appear in the decision explaining why the preliminary issue could or would not be decided between the time of the Conference and the date scheduled for the hearing on the merits, just short of five months later. I agree with the respondent that the Tribunal’s rules are to be interpreted and applied to “ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.”

10It would have been preferential in the circumstances that the agreed upon preliminary issue be decided before the hearing in the merits. The question for me to determine is whether the request for reconsideration falls within rule 18.2.

11In my view, the respondent was not afforded procedural fairness when its request for a determination of the preliminary issue was denied without reasons. Both the respondent and the applicant should have the benefit of a decision on the preliminary issue before incurring the expenses of a full hearing.

12Accordingly the request for reconsideration is granted. The preliminary issue will be determined on September 5, 2018 as previously scheduled, but the balance of the hearing will be adjourned pending the release of a decision on the preliminary issue.