Licence Appeal Tribunal
Tribunal File Number: 17-002867/AABS
Case Name: 17-002867 v Economical Mutual 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
and
Economical Mutual Insurance Company
Respondent
Decision on change of Motion Hearing format
Adjudicator: Heather Trojek, Vice Chair
For the Applicant: Marinus Lamers, Counsel
Issue to be Determined – Motion Format
1The applicant filed a motion to exclude the reply filed by the respondent in a written preliminary issue hearing. The Tribunal scheduled the motion to proceed in writing. Pursuant to s. 5.1(2) of the Statutory Powers and Procedures Act, R.S.O. 1990, the applicant filed a request to have the motion heard by telephone conference.
Result
2The applicant’s request for the motion to be heard via telephone conference is denied.
The motion will be heard in writing by the adjudicator presiding over the preliminary issue hearing.
Background
3The applicant was injured in a motor vehicle accident on July 29, 2009 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996. The applicant disagreed with the respondent’s decision not to pay certain benefits and filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service. The parties participated in a case conference but were unable to resolve the issues in dispute.
4At the case conference the respondent raised a preliminary issue. Adjudicator Maedel in an Order dated July 19, 2017 scheduled a written hearing to determine whether the applicant missed the two year time limit to dispute the stoppage of his housekeeping and attendant care benefits.
5Prior to the written hearing, the applicant filed a motion which included a request to change the format of the written preliminary issue hearing to an oral hearing. The motion was heard via telephone conference. In a motion decision dated October 12, 2017, Vice Chair Hunter dismissed the applicant’s motion.
6On February 6, 2018, the applicant filed a motion with the Tribunal requesting that the adjudicator presiding over the preliminary issue hearing disregard/strike the respondent’s reply submissions or in the alternative that the applicant be given the opportunity to file further responding submissions to address the arguments made by the respondent in its reply. The applicant requested that the motion be heard orally.
7The Tribunal issued a Notice of Motion Hearing dated February 9, 2018, advising the parties that the hearing adjudicator would hear the motion and conduct the written preliminary issue hearing on February 16, 2017. In the notice the respondent was given until February 15, 2018, to file a response to the applicant’s motion to exclude its reply submission.
8On February 13, 2018 the applicant submitted a letter to the Tribunal requesting that the motion to strike the respondent’s reply be conducted by telephone conference instead of in writing.
Analysis and Reasons
9The applicant argues that the motion should be heard orally because there are complex legal and significant factual issues in dispute.
10I did not seek submissions from the respondent on the format of hearing because the applicant has failed to satisfy me that there is a good reason for the motion to be conducted by telephone conference.
11In his request to have the current motion conducted by telephone conference the applicant argues that the complexity of the legal issues to be determined require it to be conducted orally. I do not find that the applicant’s motion to exclude the respondent’s reply submissions to be legally complex. Even if I did, I would not automatically conclude that the hearing should be conducted orally. In fact, I find that complex legal arguments based on the interpretation of statutes and case law are often best done through the filing of written submissions. The applicant has therefore failed to satisfy me that the complexity of the legal issues is a good reason to change the format of the motion hearing to a telephone conference.
12The applicant argues that because there are a significant number of facts in dispute the motion should not be conducted in writing. I do not agree. In his October 2017 motion decision, Vice Chair Hunter found that the dispute in the preliminary issue hearing, is a legal rather than a factual one. There are no witnesses being called and the only evidence being filed is documentary. One of the Tribunal’s mandates is to ensure the efficient, proportional, and timely resolution of disputes on their merits. This is codified in Rule 3.1 (b) of the Tribunal’s common rules of practice and procedure. I find that written hearings are a proportionate and efficient method to determine matters which have few, if any, facts in dispute and are based primarily on legal arguments and documentary evidence. The applicant has failed to satisfy me that there are significant enough facts in dispute to warrant this motion to be conducted orally instead of in writing.
13I do not agree with the applicant’s submission that it would be more efficient and less prejudicial to the applicant to hold the motion hearing by telephone and in advance of the preliminary issue hearing. In order to make a determination on the motion, the presiding adjudicator will have to review the documents and read the submissions that were filed for the preliminary issue hearing. It would therefore be a duplication of effort and thus less efficient to have the motion and the preliminary issue hearing conducted separately and in two different formats.
14I am not persuaded that the applicant will suffer any prejudice if the motion is heard in writing. The Tribunal is committed to providing procedurally fair and unbiased hearings to all parties. The applicant argues that conducting the motion in writing will prevent him from responding to arguments raised by the respondent in response to the Notice of Motion. I do not agree. If required the adjudicator presiding over the motion and preliminary issue hearing can request additional written submissions by either party in order to make a just decision on the merits.
Decision
13For the reasons noted above, the applicant’s request to have his motion heard via telephone conference is dismissed.
Date: February 16, 2018
Heather Trojek Vice Chair