E.L. v. Wawanesa Mutual Insurance Company, 2020 CanLII 42668

E.L. v. Wawanesa Mutual Insurance Company

Citation: E.L. vs. Wawanesa Mutual Insurance Company, 2020 ONLAT 19-003212/AABS

Released: June 15, 2020

Tribunal File No.: 19-003212/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:

E. L.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

(Motion to file a Sur-Reply, and Preliminary Issue)

ADJUDICATOR: Nidhi Punyarthi

APPEARANCES: Nathan Tischler, Lawyer for the Applicant Erica Lewin, Lawyer for the Respondent

Heard: Heard by way of written submissions

OVERVIEW

1On November 16, 2015, the applicant was involved in a car accident. He claimed benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 ("Schedule").¹ The respondent denied his claim for benefits. The applicant then applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal").

ISSUES

2This matter came before me for a written hearing. The materials disclose the following questions:

i. Can the applicant file a reply to the reply (a "sur-reply") for the preliminary issue hearing?

ii. As a preliminary issue, is the applicant barred from proceeding with his application due to s. 55(1)2 of the Schedule?

iii. Are the parties entitled to costs of the preliminary issue hearing and the applicant's motion to file a sur-reply?

RESULT

3The applicant cannot file a sur-reply.

4Based on s. 55(1)2 of the Schedule, the applicant is barred from proceeding with his application.

5Neither party is entitled to costs.

ANALYSIS AND REASONS

Sur-Reply

6The applicant brought a motion requesting leave to file a sur-reply, or in the alternative, to strike specific paragraphs in the reply.

7Generally, submissions are three-fold. They consist of moving submissions, responding submissions, and reply submissions made by the moving party.

8Reply submissions cannot be a repeat of the moving submissions. Rather, reply is to be confined to addressing any new information from the responding submissions.

9A sur-reply is even more limited, and generally not allowed. It is only available in exceptional circumstances. The parties agree on this. In general, the parties also agree on the applicable considerations on when a sur-reply is appropriate.²

10In this case, the question before me is whether the disputed paragraphs in the reply are new information, factually misleading, or an unfair surprise, such that a sur-reply is required to address those paragraphs?³

11According to the applicant, two paragraphs within the reply contain new information and are misleading. In these two paragraphs, the respondent has addressed its perception of the applicant's compliance with the Rules of Professional Conduct and general standards of courtesy.

12In my view, the content of these two paragraphs has no bearing on the preliminary issue question. They are of no assistance in deciding whether the applicant is restricted from applying to the Tribunal under the Schedule. As a result of their irrelevance, I have assigned them no weight.

13Do these paragraphs colour the mind of the hearing adjudicator against the applicant? I am not persuaded that this is the case here. In my view, the paragraphs at issue are so irrelevant that I have not assigned them any weight for the purposes of the decision. Because they are irrelevant, they are not factually misleading.

14Also, I am unable to characterize the information in these paragraphs as new information or an unfair surprise that requires a response by sur-reply. It is quite common, unfortunately, for adversarial parties to make comments about each other's courtesy and professionalism in the middle of their submissions. In my view, comments of this nature are not new information or an unfair surprise that require a response by sur-reply.

15From time to time, decision-makers are faced with parties making comments in this category against their adversaries. Given how frequently this occurs, it would also not make sense to strike such comments in every case.

16Depending on the case, the decision-maker can decide what, if anything, to do with the comments, and whether the content of those comments pertains to a question that is within their scope. In this case, I have assigned no weight to the paragraphs because they are irrelevant to the question before me.

17I was not provided with case law that specifically addressed whether the reply paragraphs at issue should be struck. While the paragraphs are irrelevant, I am not persuaded that the remedy of striking the paragraphs should be granted here. There is no prejudice to the applicant in maintaining the reply submission as is because I have the ability to review and assign weight as appropriate.

18In conclusion, the paragraphs at issue do not constitute new information, factually misleading information, or an unfair surprise, such that a sur-reply is required to respond to them. A sur-reply is not permitted in this instance, and the reply will stay as is.

19Costs are discussed near the end of this decision.

Is the applicant barred under s. 55(1)2 of the Schedule?

20Under s. 55(1)2, the applicant shall not apply to the Tribunal if he has failed to attend an IE and if notice of that IE was given in accordance with the Schedule.

21There is no dispute that the applicant did not attend an IE at the material time.

22The applicant submits that s. 55(1)2 does not apply in his case because:

i. The respondent did not comply with the Schedule with respect to the IE; and

ii. The IE itself was not reasonably necessary.

23I will address each of these arguments in turn.

(i) Did the respondent fail to comply with the Schedule under s. 55(1)2?

24In order to rely on s. 55(1)2, the respondent must provide the applicant with notice that it requires an IE in accordance with the Schedule.

25According the applicant, the respondent failed to:

i. Prove that it arranged the IE at its expense under s. 44(5) by producing the retainer agreement between it and the IE assessor; and

ii. Prove that it gave the IE assessor records as required under s.44(9)2.ii.

26The applicant further submits that, unless the respondent can show that it met the above requirements, it cannot establish that it provided notice that it requires an IE in accordance with the Schedule.

27In my view, the applicant's interpretation of s. 55(1)2 is incorrect. The language of this provision is significantly more limited than the applicant's interpretation.

28To rely on s. 55(1)2, the respondent must show that it gave notice that it requires an IE in accordance with the Schedule. In other words, the respondent must show that it met the notice requirements of requesting an IE that are set out at ss. 44 of the Schedule.

29While the respondent is bound by other requirements under the Schedule to request an IE (such as arrange one at its expense, use a regulated health professional, and provide relevant and necessary documents to its assessor), these requirements need not be proven when deciding a question under s. 55(1)2. For the purposes of s. 55(1)2, the respondent need only show that it complied with the notice requirements.

30In this case, the applicant has not raised any issue that the respondent met the notice requirements set out in ss. 44(5)-(8) of the Schedule.

31Therefore, for the purposes of deciding a question under s. 55(1)2, the respondent has complied with the Schedule.

(ii) Did the respondent request an IE that was not reasonably necessary?

32Section 44(1) of the Schedule limits the frequency of IEs. Under this subsection, an IE should not be required more often than is reasonably necessary. If the Tribunal finds that the IE was not reasonably necessary, then the applicant was justified in not attending the IE.

33Based on the undisputed evidence in this case, at the time the IE at issue was requested, the previous set of IEs was two years old. It is also not disputed that at the time the IE was requested, the respondent had to decide whether the Minor Injury Guideline no longer applied to the applicant.

34In my view, the respondent was faced with a significant determination to make on the applicant's medical status. Also, a reasonable amount of time had passed since the last set of IEs. Therefore, when it requested the IE of the applicant in November 2018, the IE was reasonably necessary.

35The respondent had set out its reasons for requesting the IE in its letter to the applicant dated November 1, 2018. I find these reasons to be well-explained and in further support of my decision that the requested IE was reasonably necessary.

36Accordingly, both of the applicant's arguments in relation to s. 55(1)2 have not been made out on the evidence. The respondent complied with the applicable notice requirements for the IE, and the IE in question was reasonably necessary.

37Given that the applicant did not attend this IE, he is now barred from applying to the Tribunal because of s. 55(1)2. of the Schedule.

(iii) Can I order this application to proceed under s. 55(2)?

38Under section 55(2) of the Schedule, the Tribunal may permit an application to proceed despite a finding under s. 55(1)2.

39This subsection is clearly linked to the provision that was within the preliminary issue question. Despite that, I do not have submissions from either party on why the application should be permitted to proceed under s. 55(2).

40At any rate, the overarching question to ask here is whether there is prejudice to any party if the application were permitted to proceed. In this case, too much time has passed since the IE was first requested and refused. If I were to now make an order for an IE to take place in the future, it would not yield relevant or useful information for the purposes of deciding whether the applicant is outside of the Minor Injury Guideline.

41The applicant submits that he would have consented to a paper review. A paper review does not replace the opportunity to conduct an in-person assessment at the relevant time, especially in the particular circumstances of this case. Where reasonably necessary, the product of an in-person assessment is necessarily different from a paper review. An in-person assessment conducted at the appropriate time can yield important information as to whether a designation change or benefit claim are payable under the Schedule. Therefore, even a paper review, at this late stage, is of limited use.

42If the Tribunal were to allow the application to proceed at this time, there would be no way of overcoming the prejudice faced by the respondent. The respondent did not have the ability to assess the applicant's claim at the time it was made. An examination or review at this stage would not yield relevant information to make that assessment.

43For these reasons, the applicant is not permitted to proceed with his application under s. 55(2).

44The applicant is barred from proceeding with his application.

Costs

45The Tribunal's Rules⁴ set out a specific test for the granting of costs. The request for costs must show that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith.

46I have reviewed the requests for costs from both parties. In my view, neither party has conducted themselves in a manner so as to attract a sanction of costs under the Rules.

47Each request for costs must be considered on a case-by-case basis.

48In this case, the respondent missed the initial deadline to file submissions for the preliminary issue hearing. In so doing, the respondent breached the timelines ordered within the initial case conference order.

49Subsequently, the respondent filed its submissions, and the applicant then filed his responding submissions. The applicant was certainly inconvenienced by the late submissions in that he had to file submissions twice. However, because he was able to fully respond to the late submissions, he was not prejudiced by them. In my assessment, by filing its submissions late in this case, the respondent did not engage in conduct that was frivolous, vexatious, or invited an abuse of process. Based on my reading of the Rules, I cannot sanction the respondent in this case by an order of costs because it missed the deadline for submissions in these specific circumstances.

50According to the respondent, the applicant engaged in vexatious conduct by taking the position it did on the preliminary issue hearing and by bringing its motion for a sur-reply. I disagree with the respondent in this regard.

51In this case, the applicant made arguments and provided legal and evidentiary support. Even though the applicant was unsuccessful, his arguments did not lack foundation. I cannot characterize his approach and arguments as vexatious. Therefore, the applicant has not conducted himself in a manner so as to attract the sanction of costs under the Rules.

52Accordingly, neither party is entitled to costs in this case.

Obiter: Other Issues

53There were a couple of other issues in the applicant's submissions that I wish to address.

Alleged Improper Amendment of the Case Conference Order

54The applicant submits that the Case Conference Order timelines were extended without asking for submissions from him.

55Under the Statutory Powers Procedure Act,⁵ the Tribunal has authority to make orders that provide for a fair and efficient resolution of the dispute on the merits.⁶ If the Tribunal determines that extending timelines for submissions is consistent with that objective, the Tribunal can make that order. In appropriate cases, the Tribunal can make such an order on its own instance: i.e., without a motion or asking for submissions.⁷

56Here, the extension of timelines permitted both parties to present their cases. The amendment did not negatively impact procedural fairness to either party.

57The Tribunal acted well within its authority to amend the case conference order timelines.

Scope of the Tribunal's authority

58The applicant submits that the Tribunal has the statutory authority to make a sanction against the respondent for a breach of duty of good faith, and to issue a caution against the respondent.

59In making this submission, the applicant refers to s. 3(2) of the Licence Appeal Tribunal Act.⁸

60I do not read s.3(2) of the Licence Appeal Tribunal Act as enabling the Tribunal to make the sanction and caution requested. I read the section as stating that the Tribunal has the powers to carry out its prescribed authority. The Tribunal is a creature of statute and is not otherwise permitted to make the specific sanction or caution requested by the applicant. There is no governing legislation that would permit the Tribunal to grant such a sanction or caution.

61For these reasons, the Tribunal cannot make the sanction or caution requested by the applicant in his submissions.

62The applicant also makes references to the Personal Information Protection and Electronic Documents Act ("PIPEDA"). If there is an issue that the PIPEDA was not complied with, the Tribunal has no jurisdiction to make a determination in that regard. The Tribunal cannot, therefore, consider submissions that refer to breaches of the PIPEDA per se. Again, being a creature of statute, the Tribunal can only address an issue set out in its governing legislation. For example, it cannot consider whether the PIPEDA was breached by an IE request. Conversely, it can consider, as it did above, whether the IE was reasonably necessary.

63Given the applicant's submissions, I found it necessary to clarify the scope of the Tribunal's authority as above.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 ("Schedule").
2. 2Both parties refer to the considerations in Lockridge v. Director, Ministry of the Environment, 2013 ONSC 6935 (Ont. S.C.).
3. 3I have distilled the lengthy submissions within the Notice of Motion, Responding Motion Submissions, and Reply Submissions to arrive at this synthesized question.
4. 4Common Rules of Practice and Procedure – Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, effective October 2, 2017 ("Rules").
5. 5Statutory Powers Procedure Act, R.S.O. 1990, Ch. S. 22 ("SPPA").
6. 6SPPA, ss. 2, 25.0.1.
7. 7Rules 3.1, 14.1 and 17 of the Tribunal's Rules.
8. 8Licence Appeal Tribunal Act, S.O. 1999, ch. 12 – Sch. G ("LAT Act").