Licence Appeal Tribunal File Number: 20-010308/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:
Harpreet Grewal
Applicant
and
Peel Mutual Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Chloe Lester
APPEARANCES:
For the Applicant:
Harpreet Grewal, Applicant
Imtiaz Hosein, Counsel
Max Katz, Co-Counsel
For the Respondent
Jonathan Schrieder, Counsel
Court Reporter:
Bruce Porter
Heard by Videoconference:
October 18, 2021
ISSUE FOR THIS HEARING
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”)1 arising out of a motor vehicle accident on November 7, 2016.
2A hearing was scheduled to begin October 18, 2021. The week before the hearing the applicant filed a motion to adjourn the hearing. The respondent opposed, and this decision concerns that very issue.
OVERVIEW
3The parties participated in a case conference on February 4, 2021 and agreed the issues in dispute were as follows:
Preliminary issue
- Is the applicant prevented from proceeding with issues 3 and 4, under section 55(1) 2, for failure to attend section 44 examinations?
Substantive Issues
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Dr. S. Akram-Pall in a treatment plan (OCF-18) denied on October 22, 2019?
Is the applicant entitled to $4,140.25 for occupational therapy services, recommended by Okell Rehabilitation Services Inc. in a treatment plan dated October 13, 2020?
Is the applicant entitled to $5,692.09 for various assistive devices, recommended by Okell Rehabilitation Services Inc. in a treatment plan dated October 13, 2020?
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
4At the case conference a motion hearing was scheduled for April 6, 2021 to decide whether the applicant could add a claim for punitive damages. Adjudicator Mazerolle heard the matter and denied the applicant the ability to add the issue regarding punitive damages.
5The applicant filed a reconsideration on the decision. On October 8, 2021, Adjudicator Mazerolle denied the applicant’s request for reconsideration and upheld his decision.
6On October 14, 2021 the applicant filed a request for an adjournment of the hearing beginning October 18, 2021. The respondent opposed the adjournment and the applicant’s request was scheduled to be heard at the beginning of the hearing on October 18, 2021.
7On October 18, 2021 the Tribunal was served a Notice of Appeal to the Divisional Court on Adjudicator’s Mazerolle’s decision.
Submissions of the Parties
8The applicant submitted that the hearing should be adjourned for the following reasons:
a. The Statutory Powers and Procedures Act (SPPA) s.25(1)2 states that once the Tribunal’s decision is appealed, it results in a stay of the matter.
b. The hearing would be bifurcated. The issue before Divisional Court is whether a claim for punitive damages can be added to the hearing. The applicant argues that many of the submissions regarding punitive damages would be similar to the ones argued at this hearing.
c. The applicant is in the process of attending the s.44 insurer’s examinations (IE’s). The applicant has attended 2 out of the 4 examinations, with the remaining taking place after the hearing. Again, this would bifurcate the hearing, or decide issues that would have to be relitigated once the reports from the IE’s have been received.
9The respondent submits that the hearing should not be adjourned because the request was not timely. The request was made 2 business days prior to the hearing, and they have incurred costs in preparation for it. Also, the applicant decided to attend the IE’s 10 months after the original request. Had she agreed to attend the IE’s in a timely manner, the hearing would be taking place as scheduled. And lastly, the appeal to Divisional Court was served this morning, and it is nothing more than a vexatious piece of litigation. The respondent submits that the appeal to Divisional Court by the applicant has no reasonable chance of success, and these delays go beyond the principles of efficiency since there is only approximately $12,000 in benefits being claimed.
10The applicant replied that until Divisional Court decides on the matter, the respondent cannot assume there is no reasonable chance of success. If the Court decides in their favour, then costs will be awarded to them. In the end, if the applicant is successful, then this application could amount to a $1,000,000 plus matter, as the applicant has filed an application for determination of catastrophic impairment.
DECISION AND REASONS
11I agree with the applicant and have decided to stay the hearing pending the decision from Divisional Court and the reports from the scheduled IE’s.
12The SPPA is clear that once an appeal has been filed at Divisional Court, the matter at the Tribunal is stayed pending the decision, unless ordered otherwise by the Court.
13The applicant agreed to attend the IE’s. The Schedule is clear that an applicant is barred from proceeding on a claim if they fail to attend an IE. Once they have attended, the matter may proceed to a hearing. Since the applicant agreed to attend and is in the middle of completing the IE’s, it would be a better use of the Tribunal’s and the parties time to wait until the IE’s are concluded to hold a hearing. The applicant agreed to attend the IE’s 3 months prior to the hearing, and due to scheduling conflicts, 2 of the IE’s took place prior to the hearing and the others have yet to take place. Either one of the parties could have requested an adjournment knowing fully that the IE reports would not have been completed prior to the hearing. If I do not adjourn the hearing, the issues in dispute would be split between different hearings and possibly different adjudicators. This would cause similar issues to be determined at separate hearings. This is not the most efficient way to decide the application before the Tribunal.
ORDER
14I order the hearing be adjourned and the application stayed.
15Once a decision is rendered from Divisional Court and the IE reports have been completed, either party may write to the Tribunal requesting new hearing dates.
Released: November 4, 2021
Chloe Lester, Vice Chair
Footnotes
- O.Reg. 34/10.
- Appeal operates as stay, exception 25. (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless, (a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or (b) the tribunal or the court or other appellate body orders otherwise. 1997, c. 23, s. 13 (21).