Licence Appeal Tribunal File Number: 19-009248/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:
Syed Gilani
Applicant
and
Travelers Insurance Company of Canada
Respondent
MOTION DECISION
ADJUDICATOR:
Paul Gosio
APPEARANCE:
For the Applicant:
Joseph Campisi and Ashu Ismail, Counsels
For the Respondent:
Christopher Schnarr, Counsel
Motion Heard In Writing:
May 19, 2021
OVERVIEW
1The applicant was injured in an automobile accident on December 4, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2A hearing by way of video conference began on March 9, 2021. One of the main issues in dispute is whether the applicant is catastrophically impaired pursuant to the Schedule. On May 19, 2021, the applicant filed a motion seeking an Order from the Tribunal referring the matter to the Divisional Court for a contempt hearing, because the respondent’s occupational therapist failed to attend the hearing to give evidence despite receiving a “Summons to a Witness” to do so.
3This Motion Decision deals with the relief sought. I have considered the submissions of the applicant as the respondent has taken no position with respect to the applicant’s motion.
RESULT
4The applicant’s motion is granted. The matter shall be referred to the Divisional Court for a contempt hearing.
DISCUSSION
5The hearing for this matter commenced March 9, 2021. One of the witnesses being called by the applicant is Ms. Mihwa Lee, who is an occupational therapist that conducted an insurer assessment on behalf of the respondent.
6Two “Summons to a Witness” were obtained from the Licence Appeal Tribunal on February 19, 2021 and March 12, 2021 in order to secure Ms. Lee’s attendance at the hearing.
7Attempts were made by TDOT Litigation Servers to personally serve the Summons’ to Ms. Lee at her home address as listed by the College of Occupational Therapists of Ontario (COTO). TDOT Litigation Servers were unsuccessful in personally serving the Summons to Ms. Lee.
8On March 3, 2021, applicant’s counsel then contacted COTO and the respondent’s counsel in order to obtain alternative or additional contact information for Ms. Lee. Neither party had alternative or additional contact information for Ms. Lee.
9On March 12, 2021, the “Summons to a Witness” was served on Ms. Lee by way of her email address. The certificate of service indicates that this alternative method of service was directed by the Tribunal in accordance with Rule 6.1(e) of the Common Rules of Practice and Procedure (“Rules”). Ms. Lee did not respond to this email.
10On May 13, 2021, counsel for the applicant contacted counsel for the respondent regarding Ms. Lee’s attendance at the Hearing. Counsel for the respondent indicated they had contacted Ms. Lee and asked her to contact counsel for the applicant to make the necessary arrangements for her to provide her evidence at the hearing.
11On May 18, 2021, the applicant attempted to contact Ms. Lee by way of her email address with respect to her required attendance at the Hearing. Ms. Lee’s email generated an auto response which indicated:
Please note that I am on leave indefinitely and will not be responding to emails. Sorry for the inconvenience.
12The applicant has provided the necessary supporting documentation regarding this Motion for an Order referring the matter to the Divisional Court for a Contempt Hearing.
13Section 13(1) of the Statutory Powers and Procedure Act1 states:
Where any person without lawful excuse,
(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; …the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court.
14I am satisfied, on a balance of probabilities, that Ms. Lee was properly served with a “Summons to a Witness” and has failed to attend the hearing. The Tribunal has no information with respect to the reasons for her non-attendance. Ms. Lee’s evidence is important as it relates to the catastrophic impairment determination before the Tribunal. With that in mind, the matter shall be referred to the Divisional Court for a Contempt hearing.
ORDER
15The applicant’s motion is granted. The matter shall be referred to the Divisional Court for a Contempt hearing.
Released: October 21, 2021
Paul Gosio, Adjudicator