Tribunals Ontario Safety, Licensing Appeals and Standards Division 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 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: D. Stephen Jovanovic
File: 18-011978/AABS
Case Name: [L.D.] vs. Gore Mutual Insurance Company
Written Submissions by:
For the Applicant: Peter Murray
For the Respondent: Arthur Camporese
OVERVIEW
1This decision deals with a request for reconsideration from the applicant of a decision of the Tribunal dated February 28, 2020 following a Case Conference. For the reasons that follow the request is dismissed.
2The applicant filed an application with the Tribunal on December 4, 2018 to resolve a dispute regarding her entitlement to income replacement benefits and a determination as to catastrophic impairment following a motor vehicle accident of November 24, 2015.
3The respondent took the position in its response that section 55 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule), which states that an insured person shall not apply to the Tribunal under section 280 (2) of the Insurance Act, if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied with that section, precluded the application. The respondent sought a determination of this “preliminary issue” while the applicant brought a motion to “strike” the issue.
4The applicant’s motion was heard by the Tribunal by way of a teleconference and dismissed in a decision dated June 29, 2019. The Tribunal also ordered that a further Case Conference should be scheduled “limited to discussing the procedural elements of the preliminary issue hearing.”
5The applicant then requested that the adjudicator who dismissed her motion recuse himself and “void” the decision on the basis that he displayed a reasonable apprehension of bias. That request was denied in a written decision dated August 26, 2019.
6Moving ahead to the February 21, 2020 Case Conference, the Tribunal made various orders including that the preliminary issue would be addressed by way of a written hearing. Dates were established for the exchange of written submissions with each party being allowed to deliver up to 50 pages of submissions and the respondent up to a 20-page reply. An extensive order for the production of documents by the respondent by April 3, 2020 was also made. The written hearing of the preliminary issue was scheduled for July 13, 2020.
7The applicant submitted her request for reconsideration on March 23, 2020.
ANALYSIS
8The parties recognized that the threshold issue to be decided on a request for reconsideration is whether the request falls within the Tribunal’s rule 18.1 which only allows for reconsideration of a decision of the Tribunal that finally disposes of the appeal. However, the applicant wrote the following:
Specifically, the Applicant requests reconsideration from the final order of Adjudicator Sharma that was in effect a blanket quash order denying the Applicant the opportunity to call witnesses otherwise unwilling to provide evidence through affidavit, on behalf of the Applicant, in requiring the hearing be done in writing extinguishing rights of the Applicant.
To be clear, the order of Adjudicator Sharma was a final decision as it was dispositive of the Applicant’s right to call evidence, from third parties, including regulated health professionals represented to be section 44 insurer examiners and intermediaries who carry out functions outside of those specifically conceived and delineated under the Insurance Act and regulations
9In my view, it cannot be said that the order directing a written hearing on a preliminary issue is a decision that “finally disposes of the appeal.” It is a procedural order made in compliance with the Tribunal’s responsibility to “ensure efficient, proportional, and timely resolution of the merits of the proceedings”: see rule 3.1.
10Rule 18.1 has most recently received a more expansive interpretation to encompass decisions that dispose of certain preliminary issues or partial claims and not the entire application. I do not find that the applicant’s request falls within this more expansive interpretation.
11I cannot determine if the timeframes set in the order of February 28, 2020 have been met by the parties. If either party requires an extension, they should first confer with one another and if there is no agreement they may contact the CMO to request a further Case Conference. However, the July 13, 2020 date by which the preliminary issue is to be considered should be maintained.
CONCLUSION
12The applicant’s request for reconsideration of the Tribunal’s order of February 28, 2020 is dismissed.
D. Stephen Jovanovic Associate Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: April 27, 2020