L.S. v. Guarantee Insurance, 2019 CanLII 51333

Tribunal File Number: 18-004105/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:

L.S.

Applicant

and

Guarantee Insurance

Respondent

MOTION DECISION

Decision made by: Ian Maedel, Adjudicator

Appearances:

For the Applicant: Samia M. Alam, Counsel

For the Respondent: Kerry Figliomeni, Counsel

Motion Hearing conducted in writing: May 6, 2019.

OVERVIEW

1The applicant was injured in an automobile accident on March 27, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ''Schedule'').

2The applicant filed an application before the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) on May 9, 2018.

3A case conference was held on November 13, 2019 before Adjudicator Hines. An in-person hearing was set for June 10-17, 2019 in London, Ontario.

4The issues in dispute are whether the applicant has sustained a catastrophic impairment, income replacement benefits, medical benefits, interest and an award pursuant to s. 10 of Regulation 664.

5The issue of exclusion of transcripts from another proceeding was raised by the applicant at the case conference. Adjudicator Hines noted at paragraph 8 of the Order that the applicant may bring a motion to exclude by March 8, 2019.

MOTION

6The applicant filed a Notice of Motion dated March 8, 2019 and sought the following relief:

i. An order excluding the transcripts from the criminal proceeding dated December 4, 2017, March 14, 2018, and April 12, 2018.

7The applicant submits the transcripts should be excluded, as the prejudicial effect of their admission would outweigh any probative value of the evidence contained therein. The applicant submits the transcripts are in relation to a separate, distinct matter not in any way determinative of the issues in dispute currently before the Tribunal. The applicant further submits the respondent has not established the relevance of the transcripts other than to suggest they affect the applicant’s credibility.

8The respondent submits the transcripts speak to the applicant’s alleged accident-related injuries, impairments, complaints, alleged limitations and restrictions, and functionality as they relate to her entitlement to an income replacement benefit, catastrophic determination and treatment. The respondent submits the Tribunal should permit the admissibility of the transcripts for the hearing scheduled for June 10-17, 2019. In the alternative, the respondent submits this motion for exclusion is premature, as any evidentiary issues regarding admissibility should be left to the hearing adjudicator.

9The applicant’s Motion was scheduled for a written Motion Hearing on April 23, 2019. However, due to a scheduling error, the Motion was never assigned to an Adjudicator.

10The applicant filed a second Notice of Motion dated May 6, 2019 and sought the following relief on consent:

i. An order extending the production deadline of May 10, 2019 until the Motion decision is rendered.

RELIEF

11The applicant’s Motion to exclude the transcript evidence is denied. The Motion is premature and any issues regarding admissibility of evidence at the hearing shall be left to the Hearing Adjudicator. To make a decision regarding the admissibility of this evidence in a vacuum, apart from the hearing could potentially fetter the discretion of the Hearing Adjudicator. Only the Hearing Adjudicator will have a full appreciation for the facts of the case and how this transcript evidence may relate to the issues in dispute before the Tribunal.

12Relevance is they key consideration for evidence tendered before the Tribunal. According to Rule 9.3(e),¹ the Tribunal may order that parties disclose any document or thing the Tribunal considers relevant to the issues in dispute. This is a relatively low bar, as parties only have to minimally satisfy this threshold. Ultimately, the Hearing Adjudicator will accord whatever weight they deem necessary to the evidence.

13Similarly, s. 15(2) of the SPPA² states that nothing is inadmissible at a hearing, subject to privilege or inadmissibility under another statute. S. 15.1 of the SPPA also speaks to the admissibility of previously admitted evidence in administrative hearings.

14Neither of the parties have directed me to any legislation that states there is an absolute bar or otherwise additional rules that may apply to the admissibility of transcript evidence at this proceeding before the Tribunal. The hearing shall proceed as scheduled and the transcript may be admitted as evidence, subject to the Hearing Adjudicator.

15The applicant’s second motion to extend the production deadline is granted. The production deadline shall be extended to May 17, 2019, to prevent any potential prejudice to the parties wrought by the Tribunal’s delay in rendering this Motion Decision.

16Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.

OTHER PROCEDURAL MATTERS

17If the parties resolve the issues in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.

Footnotes

1. 1As per the Common Rules of Practice & Procedure – Tribunals Ontario, Safety, Licensing Appeals and Standards Division.
2. 2Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22.