C. C. v. Certas Direct Insurance Company, 2019 CanLII 22216

Tribunal File Number: 17-004934/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

C. C.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

Order made by: Eleanor White, Vice Chair

Date of Order: February 15, 2019

OVERVIEW

1C.C. (“the applicant”) was involved in an accident on March 27, 2016. As a result of the accident, he sustained injuries and claimed medical benefits and income replacement benefits from the respondent, Certas Direct, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). Certas denied the applicant’s claim on the basis that the applicant failed to provide necessary documentation required to adjust the file and that the claims were either not reasonable or necessary or supported by inadequate documentation. The applicant disagreed and filed an application with the Licence Appeal Tribunal (“Tribunal”) on August 1, 2017 for dispute resolution

2The parties attended a case conference on October 5, 2017 and the resulting Order defined the hearing details and dates (February 26, 27 and 28, 2018). Production orders were fully delineated with deadlines.

3The production orders were not observed by the applicant. On January 31, 2018, the respondent corresponded with the Tribunal, advising it that the applicant now had new legal representation. The respondent moved for dismissal of the matter on the basis that the applicant has not met any production orders. The motion was heard at a case conference on February 21, 2018 by me.

4After hearing submissions from the parties, I made the following orders:

1. The motion to dismiss was denied;

2. New case conference dates would be scheduled;

3. The applicant would waive claims for interest on benefits as yet unpaid; and,

4. At the applicant’s suggestion, the hearing process would proceed on a peremptory basis, implying the matter would be dealt with in a conclusive manner, not open to further challenge or delay.

5On May 7, 2018, a case conference was held in the matter. Neither the applicant nor his new representative appeared for the case conference. I advised the parties that the Tribunal would consider dismissing the application without a hearing, pursuant to Rule 3.4 of the Tribunal’s Common Rules of Practice and Procedure, due to the application being abandoned by the applicant. On this basis, I called for written submissions on the matter of dismissal.

ISSUE

6Whether the Tribunal should dismiss the application without a hearing due to the applicant’s abandonment of the matter pursuant to Rule 3.4 of the Tribunal’s Common Rules of Practice and Procedure?

RESULT

7I find that the applicant did not abandon his application to the Tribunal in his non-attendance of the case conference.

8I also order that the productions ordered by Adjudicator Msosa, at the respondent’s request, be admissible. A new case conference will be scheduled in order to set a new hearing date for this matter and any restrictions of additional documentation will be discussed at that time.

ANALYSIS

9The over-riding mandate of this Tribunal is consumer protection through procedural fairness. At issue in this decision is whether notification of the date of the case conference was properly made by the Tribunal and received by the applicant. I am confident that the notification was duly sent by the Tribunal, however, I find that the applicant’s explanation for losing the notification due to technological problems cannot be discounted.

10The Respondent’s submissions were helpful in the provision of case law, in which the factors to consider dismissal were likened to those Reid v. Dow Corning Corp., [2001] O.J. No. 2365 (S.C.). The Reid factors ask if the party explained their delay, provided any inadvertence in missing the deadline, displayed promptness in mitigating the problem and if there was any prejudice to the other party.

11Indeed, the course of this file has not been smooth and has been marked with missed deadlines, change of representation, and missing production. Production deadlines have been ignored and communication has been minimal on the part of the applicant. The respondent’s argument that these problems have not helped the insurer to adjust the file with the information it requires and any preparation for a hearing was one-sided.

12These problems were adequately discussed in the case conference of February 21, 2018 and the applicant was eager to invite the order that the process would continue on a peremptory basis.

13The respondent was right to suggest that this loss of an email notification from the Tribunal was unlikely to be a singular event and is a rather thin defense for non-attendance at the case conference. However, I find it difficult to allow that the possibility of both the applicant and his counsel were deliberately non-compliant with the Tribunal, after receiving a stern warning in the Motion Order, to be quite untenable.

14The applicant explained in submissions the reason for his non-attendance at the case conference was due to a “technological glitch” in that the emails from the Tribunal ended up in his junk mail folder. He assures the Tribunal that this situation has been rectified by his counsel’s office.

15The applicant also lists the subsequent efforts and successes in obtaining the productions requested by the respondent and ordered by Adjudicator Msosa when previous legal representation was involved. He itemizes various medical and employment documents already received or anticipated. He also indicates there has been communication with the respondent, which evidently will consider payment for records should this matter not be dismissed.

16The applicant asks the Tribunal to be quite liberal in its interpretation of the Rules and indicates that he does not take the inconvenience to the respondent lightly. However, he argues that the matter should proceed on its merits.

17In taking a liberal approach, I return to Rule 3.4(d), which lists abandonment of the matter as an avenue to dismissal. The applicant has attached proof of receipt of some of the productions ordered originally by Adjudicator Msosa of the previous legal counsel. There is evidence of active pursuit of all documentation concurrent with the timing of the Tribunal processes and requests. There is also indication of continued communication with the insurer regarding costs of obtaining the required documentation.

18Although there were administrative glitches following other difficulties already outlined in the course of this application, I do not find evidence of abandonment of the matter and that is the basis of this consideration for dismissal. I find it difficult to believe the applicant would be willfully non-compliant with the notification of case conference at this point in the file.

CONCLUSION

19For these reasons, I do not find the applicant has abandoned the matter and will allow the matter to continue to a new case conference, the date to be canvassed by the Case Management Officer.

20The respondent has requested that I confirm the Order I made on March 28, 2018, that no documentation produced after the date ordered for the Joint Document Brief by Adjudicator Msosa be admissible in any hearing related to this claim be admissible. I will vary that Order and request that the productions ordered by Adjudicator Msosa be admitted as they allow further adjudication of the file by the insurer and the Tribunal. However, restrictions on any new evidence will be discussed at the pending case conference.