L.D. v. Gore Mutual Insurance Company, 2019 CanLII 76994

Licence Appeal Tribunal

Tribunal File Number: 18-011978/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

L.D.

Applicant

and

Gore Mutual Insurance Company

Respondent

MOTION DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

Representatives for the Applicant:

Peter Murray and Imtiaz Hosein

Representative for the Respondent:

Arthur Camporese

Held by Teleconference:

June 20, 2019

OVERVIEW

1The applicant was involved in an automobile accident on November 24, 2015. To assist in her recovery, she sought benefits pursuant to the Statutory Accident Benefits Schedule¹ (the "Schedule").

2In its initial Response and then again in its amended Response (the "Responses"), the respondent raised a preliminary issue that alleged the applicant is not permitted to proceed with her application due to her non-attendance at insurer's examinations. In reply, the applicant filed a motion "seeking to strike the 'preliminary issue' raised in schedule A of the respondent's response...as lacking a foundational basis."

3For the following reasons, I will not strike the respondent's preliminary issue. I also find that the respondent is not required to pay any costs for this part of the proceeding.

PARTIES' POSITIONS

4The applicant argued that she brought this motion as means of expediting the adjudication of the respondent's preliminary issue. That is, as opposed to conducting a full hearing with witnesses and documentary evidence, the applicant claims that the Tribunal can simply strike the preliminary issue on the basis that the respondent has not provided sufficient particulars. The applicant also added that the preliminary issue is clearly without merit, because the proposed examinations are non-compliant with the Schedule and federal privacy legislation.

5The respondent contended that the Tribunal does not have the authority to strike preliminary issues for lack of "foundation". Instead, its preliminary issue must be decided after a full hearing of the parties' evidence and argumentation. Beyond this jurisdictional concern, the respondent also argued that the respondent has provided sufficient details in its Responses to allow the applicant to respond to the preliminary issue.

6In reply, the applicant stated that the Tribunal has the power to strike a preliminary issue without a full hearing based on s. 2 of the Statutory Powers Procedure Act² and s. 3(2) of the Licence Appeal Tribunal Act, 1999.³

ANALYSIS

7The respondent asked me to consider whether the Tribunal has the authority to strike out preliminary issues at this stage of the proceeding. I do not find it necessary to decide this question, as I find the respondent has clearly provided sufficient information to both the applicant and the Tribunal about its proposed preliminary issue. Not only is the applicant aware of the procedural defense that the respondent is raising, but the Responses direct the applicant to the examinations she is alleged to have missed.

8Further, most of the applicant's arguments (namely, her contention that the examinations are in contravention of the Schedule and federal privacy legislation) are arguments best heard by the adjudicator that will decide this preliminary issue. Though the applicant is correct to note that the Tribunal is required to conduct matters in a manner that balances fairness and efficiency, this mandate can be honoured through limiting evidence and by conducting this preliminary issue hearing in writing.

9I would also add that the applicant's motion has led to the exact result she hoped to avoid, i.e., the adjudication of her substantive issues has been delayed so that her motion could be heard. As opposed to simply moving forward with a preliminary issue hearing (a forum where she could have expressed her concerns about the disputed examinations), the applicant instead chose to present these same arguments during this motion hearing.

10Taken together, I see no reason to strike the respondent's preliminary issue at this time, as the respondent has provided the applicant with ample information to begin mounting a defense against its preliminary issue.

COSTS

11Rule 19.1 of the LAT, ACRB, FSC Common Rules of Practice and Procedure, Version 1 states that costs may be awarded when "another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith".

12The applicant suggested that it was unreasonable for the respondent to pursue a preliminary issue that she believes to be meritless. I have been provided with no evidence that this preliminary issue was raised "unreasonably, frivolously, vexatiously, or in bad faith". Rather, the applicant simply disagrees with the respondent's position. As such, I will not award any costs for this part of the proceeding.

CONCLUSION

13The applicant's motion to strike the respondent's preliminary issue is dismissed. The respondent is not required to pay any costs for this part of the proceeding.

14The parties shall contact the Tribunal within 15 days of this decision being released to schedule a case conference. This case conference shall be limited to discussing the procedural elements of the preliminary issue hearing.

15I am not seized of this case conference.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2R.S.O. 1990, c. S.22: "This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits."
3. 3S.O. 1999, c. 12, Sch. G: "Except as limited by this Act, the Tribunal has all the powers that are necessary or expedient for carrying out its duties."