[The Applicant] v. Aviva Insurance Company of Canada, 2019 CanLII 94121

Citation: The Applicant vs. Aviva Insurance Company of Canada, 2019 ONLAT 18-002493/AABS

Tribunal File Number: 18-002493/AABS

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:

[The Applicant]

Applicant

and

Aviva Insurance Company of Canada

Respondent

MOTION DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Ben Fortino, Counsel

For the Respondent: Pamela J. Quesnel, Counsel

HEARD In writing on: August 9, 2019

OVERVIEW

1The applicant was injured in an automobile accident on November 6, 2006 and sought benefits from the respondent pursuant to Ontario Regulation 403/96, known as the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “Schedule”). The applicant and the respondent disagreed on the extent of the applicant’s impairments as a result of the accident and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The matter proceeded to an in-person hearing. During the hearing, the parties disagreed on the admission of certain evidence. On consent, the disagreement was ordered to be decided by a motion consisting of written submissions, which is the subject of this decision.

ISSUES

3The issue in dispute is:

1. Can the applicant file the entire original report of Dr. Gilman dated July 18, 2016?

RESULT

4The applicant may file the entire original report of Dr. Gilman.

BACKGROUND

5The applicant was involved in an accident which has led the applicant to make a claim for a determination of catastrophic impairment. The parties commissioned and exchanged expert medical reports which opine on the applicant’s medical status. After both parties commissioned and exchanged reports, they continued to disagree as to whether the applicant was catastrophically impaired. The dispute proceeded to an in-person hearing, scheduled for five days.

6The issue to this motion centres around the applicant’s main report, a Multidisciplinary Catastrophic Determination Assessment Report prepared by a collection of doctors with Alliance Diagnostics and Treatment Inc., dated July 25, 2016 (“the Alliance report”). The issue arose during the third day of the hearing when one of the applicant’s witnesses, Dr. Gilman, neuropsychologist, was providing testimony. During Dr. Gilman’s testimony it was discovered that most but not all of the report authored by Dr. Gilman (“the Gilman report”) was included in the Alliance report. The applicant seeks to submit the entire Gilman report into evidence for the hearing. The respondent objects to the admission of the Gilman report.

7The disclosure of evidence is guided by section 9 of the LAT Common Rules of Practice and Procedure (October 2, 2017) (“the LAT rules”). Rule 9.1 provides the Tribunal with the authority to order a party to provide disclosure and rule 9.2 provides a party shall disclose and serve the other party with the documents they intend to rely on at a hearing no later than 10 days before the start of a hearing.

8The Tribunal anticipated there may be instances where the untimely disclosure and service of documents becomes an issue. This is addressed in rule 9.4, which disentitles a party from relying on a document if it is not disclosed and served in accordance with the LAT rules unless the party receives the consent of the Tribunal.

9In addition, section 10 of the LAT rules addresses expert witnesses and the documents those witnesses produce. Notable for this matter is rule 10.3(a), which requires the applicant disclose and produce any expert reports at least 30 days before the hearing. There is no denying the Gilman report was not disclosed and served according to the LAT rules. At issue is whether the document should be admitted into evidence despite this untimely disclosure.

10I find the probative value of the entire Gilman report outweighs the prejudice suffered by the respondent and will allow the document to be admitted into evidence. My reasons are as follows.

11The applicant claims a catastrophic impairment primarily on psychological impairments and submits it would be impossible to determine this without the Gilman report because Dr. Gilman’s opinion as a neuropsychologist is a fundamental component of the applicant’s determination of a catastrophic impairment. The applicant claims the Alliance report and the Gilman report are nearly identical except some parts of the Gilman report were omitted from the Alliance report. The applicant also submits Dr. Gilman’s conclusions were based on the testing and assessment results which were omitted from the Alliance report and the full report must be admitted in its entirety. Lastly, the applicant submits any prejudice can be cured by providing the full report to Dr. Wiseman, the respondent’s expert witness for neuropsychology, for review prior to resuming the hearing.

12The respondent claims it would be subject to prejudice if the Gilman report was included. The respondent submits this will require witnesses to be recalled or further witnesses being called, which would be contrary to the Tribunal’s endorsement of fair, efficient, proportional, and timely resolution of the merits of a proceeding. The respondent questions the timing of this issue and submits the applicant ought to have known that parts of the Gilman report were missing between the time it was received in 2016 and the start of the hearing. Lastly, the respondent claims prejudice from increased costs. The respondent submits the adjournment of the hearing resulting in the cancellation of hearing dates and the rescheduling of witnesses and paying the witness’ cancellation fees.

13I have considered the submissions and find the respondent’s claim that witness’ will be recalled or new witnesses called is provided without reason. The record shows the only two witnesses prior to Dr. Gilman were the applicant and the applicant’s spouse and the respondent has not provided a reason why either of them would need to address the parts of the Gilman report which were omitted. The respondent previously stated an intention to rely on the expert opinion of a neuropsychologist witness and I see no reason why a different expert would be required to refute the omitted parts of the Gilman report.

14The respondent’s claim of prejudice as a result of cancellation fees is unpersuasive. The respondent consented to an adjournment of the hearing in order to research and make submissions opposing the inclusion of the document. While I appreciate the respondent was presented with a novel issue and it is fair to allow the respondent to make an informed decision on how to address the issue, I also appreciate the Tribunal has the authority to determine its own procedures and practices pursuant to section 25.0.1 of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22. In addition, rules may be waived, varied or applied on the Tribunal’s own initiative, or at the request of a party, pursuant to rule 3.1 of the LAT rules. As a result, I find an adjournment, and the cancellation and/or rescheduling of expert witnesses, avoidable and not the only remedy available to the respondent.

15From the evidence and submissions, it is clear the Gilman report was not fully disclosed prior to the start of the hearing and contrary to the LAT rules. However, the Gilman report is relevant. I find the relevance of the Gilman report outweighs the prejudice claimed by the respondent. As a result, I will exercise my discretion and allow the applicant to produce and rely on the report.

NEXT STEPS

16I endorse the applicant’s suggestion that the complete Gilman report be provided to the respondent’s neuropsychologist expert witness prior to the resumption of the hearing. This promotes a fair process as it allows the respondent the opportunity to review it and, if necessary, seek further opinion on the information. I will order the applicant to provide the document to the respondent, if not done so already.

17I appreciate the respondent will wish to obtain an opinion on the contents of the complete Gilman report. To accommodate this, the parties will attend a case conference following the release of this motion decision to address the timeline to conduct and exchange a rebuttal report, if necessary, and any other case management purposes which may arise. The Tribunal will schedule the case conference as soon as reasonably possible.

COSTS

18Costs were not initially listed as an issue to this proceeding, however, I will address the issue as it is relevant to this motion and will provide guidance to the parties as this matter proceeds. The respondent claims additional costs in the form of cancellation fees for expert witnesses and, potentially, fees for calling additional witnesses. The applicant submits the circumstances were unforeseen and costs are not warranted. Pursuant to Rule 19.1 of the LAT Rules, costs may be awarded in the event a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. For the reasons outlined below, I defer to the hearing adjudicator to address costs.

19I see no rule disentitling a party from seeking costs while the proceeding is ongoing, however, I find it would be premature to address costs at this point in the proceeding.

20For this matter, I find costs should be assessed at the conclusion of the hearing by the hearing adjudicator because the hearing adjudicator has a better understanding of the parties’ conduct during the proceeding. Whereas I, as the motion adjudicator, am only privy to a small portion of the overall proceeding. This will allow parties to make fulsome submissions on the topic and the adjudicator can consider the entirety of the parties’ conduct during the proceeding.

ORDER

21The applicant may use the Gilman report as evidence.

22The applicant must provide the respondent with a copy of the Gilman report within 10 business days of the release of this motion decision.

23Costs may be addressed by parties at the conclusion of the hearing.

24The Tribunal will schedule the case conference as soon as reasonably possible.