Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Chloe Lester, Vice Chair
File: 18-003622/AABS
Case Name: L.G. v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant: Gerald S. Antman / Kristy L. Kerwin, Trianta Longo LLP
For the Respondent: Jonathon Kahane-Rapport, JKR Lawyers
OVERVIEW
This Request for Reconsideration was filed by the applicant, the insured in this matter. It arises out of an Order dated January 3, 2019 following a case conference. The applicant asserts he was denied procedural fairness by the Tribunal when it made an order compelling him to produce the list of his solicitors’ file.
The applicant is seeking an order cancelling or staying the Tribunal’s January 3, 2019 Order. In the alternative, the applicant seeks to vary the order and instead only require the disclosure of those documents upon which the applicant intends to rely on at the hearing in accordance with Rule 9.3(c) of the LAT Rules.
Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
- The applicant’s Request for Reconsideration is dismissed.
ANALYSIS
The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure.
The applicant submits that there has been a breach of procedural fairness and a lack of evidence before the Tribunal. Specifically, the applicant asserts he was forced to respond to a motion without being given proper notice or an opportunity to fully respond to the motion. There has also been an error of law or fact as it is costly to produce the list of documents as the file is over 13 years old and has over 900 items on file. The applicant’s position is that complying with such an order amounts to assisting the defense in making their case.
In reviewing the submissions of the parties and evidence it is clear, the Tribunal’s Order does not require the applicant to produce a list of the contents of his solicitors’ files. Instead the Order states as follows:
“The applicant will then provide, within four weeks of the date of this order, a list identifying all accident benefits file correspondence and corresponding documents in its possession from the accident benefits file that are relevant to the issues in dispute or that it intends to rely on at the hearing – less privileged correspondence or documents - and which were not previously identified by the respondent.”
This accident is over 13 years old with numerous law firms representing the applicant and adjusters on the file. The Tribunal’s Order was made in order to ensure procedural fairness for both the applicant and the respondent. The Order was clear that the list of documents to be produced to the respondent did not include privileged documents.
I also find that no motion was brought before the Tribunal by the respondent. If so, the adjudicator would have mentioned it in their case conference report and order. Production of documents are routinely discussed at a case conference. The respondent brought forward the challenges in complying with the Adjudicator’s initial Order dated October 15, 2018 which ordered them to produce the complete accident benefit file. I find that there has been no denial of procedural fairness in this case. Both parties were represented by counsel, participated at the case conference and had the opportunity to make submissions and arguments in respect of productions.
The applicant has misstated or misunderstood the contents and requirements of the January 3, 2019 Order. Further, I find the Order requiring the parties to exchange a list of documents was within the adjudicator’s discretion and made after considering submissions from the parties.
CONCLUSION
For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
In light of this decision, I order the applicant to comply with Adjudicator’s Order dated January 3, 2019 by April 19, 2019. The respondent has complied with the Tribunal’s Order. Either side may request documents they require from those lists by April 26, 2019. Those documents must be produced by May 2, 2019. All documents the parties will be relying on for the hearing must be exchanged in accordance with Rule 9.2 of the Tribunal’s Rules of Practice and Procedure.
Chloe Lester Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: April 11, 2019