Nicholas Crecoukias v. Toronto Transit Commission, 2021 CanLII 124051

Citation: Crecoukias v. Toronto Transit Commission, 2021 ONLAT 19-014590/AABS - M

Licence Appeal Tribunal File Number: 19-014590/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:

Nicholas Crecoukias

Applicant

and

Toronto Transit Commission

Respondent

Motion Order Decision

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Nicholas Crecoukias, Applicant Mr. Daniel Lee, Counsel

For the Respondent: Chad Townsend, Counsel

HEARD: by Videoconference: November 15, 2021

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on July 18, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2This motion hearing concerns two issues. One, the respondent requested an adjournment of the hearing because the TTC underwent a cyber attack two weeks ago and since then has not had access to their internal files, computer, or email. Two, the applicant requested that the surveillance video evidence be excluded because it was disclosed outside of the timelines provided in the case conference order.

REQUEST FOR ADJOURNMENT

3The respondent requests an adjournment of the hearing because he has not had access to his internal systems, emails, computer, or personal computers since October 28, 2021. He has also been directed by the TTC to not use any USB keys and that all computers remain powered off. The respondent argues that since he has had no access to his computer for the last few weeks, he has not been able to properly prepare for this hearing. He also argues that even though he has had a copy of the brief, to properly prepare for this hearing, there is more information he would need access to. The respondent indicated that he will most likely have access to the internal systems this week.

4The applicant opposes the request for adjournment because this is a catastrophic claim and urgency of the hearing is paramount. The applicant argued that counsel for the respondent had a year to prepare for this hearing. He argues that if the hearing is adjourned the next hearing dates will not be for a long time, and he is also concerned how this will affect his client and witnesses.

5In review of the parties’ submissions, I order the hearing be adjourned for three weeks to December 6-15, 2021. The hearing will begin at 9:30 am via video conference hearing. The respondent requested an adjournment of the hearing due to unexpected and protracted delay in getting access to his computer. It is only reasonable that he would need extra time to prepare. Any prejudice this request has caused the applicant has been rectified by having the hearing adjourned for three weeks. This ensures the respondent has enough time to prepare and for the parties to summons their witnesses.

MOTION TO EXCLUDE EVIDENCE

6The applicant requests that the surveillance video and report be excluded from the hearing because the report was served late. The applicant argues that the respondent was supposed to disclose the evidence, as indicated in the case conference report, by May 31, 2021 and at the latest October 15, 2021.The video and report was served on October 28, 2021. Since the video and report was served late, the applicant argues that this causes significant prejudice since he is not able to prepare any of his witnesses on it. He also argues that adding the video and report would elongate the testimony of all witnesses and would increase hearing days.

7The respondent argues that it was truly an inadvertence and it was still disclosed in accordance with the Tribunal’s rules 9.2. The respondent argued that the Tribunal’s rules under 3.1 allows for liberal interpretation of the Rules and may be varied in order to account for any prejudice. The respondent argues the video and report are relevant because it shows the applicant functioning at a higher level than what he claims. The respondent relies on three decisions¹ to support his position that the if the video and report are deemed relevant then the evidence should be allowed in the hearing. Any prejudice caused to the applicant can be remedied by various means.

8The applicant replied stating that the video and report gives little probative value as none of the assessors have seen this video. This video was also taken during a time in which the applicant was not taking his medication and does not depict an accurate reflection of the applicant’s capabilities. The applicant also argues that the video and report was taken in 2018 and this evidence could have been served at any time during this period.

9I have considered the submissions of the parties and I order the surveillance video and report be excluded. I find that the video and report give very little probative value and is not relevant to the issues in dispute. This video was not used to determine the benefits in dispute, and it was not given to any of the assessors for comment. The respondent had the video and report for 3 years and it missed two ordered deadlines to produce it. Earlier deadlines are placed in a case conference order to ensure fairness and adequate time to prepare for the hearing. I differentiate the three cases relied on by the respondent to this one as the video surveillance was considered relevant to the issues in dispute and in this case it is not. I find the prejudice it causes the applicant in preparing its witnesses and elongating the hearing outweighs any probative value and therefore it is excluded.

10The respondent requested that if the video and report are excluded for the hearing that it could be used in the event a witness commits perjury. I will leave that decision to the hearing adjudicator to make.

ORDER

11I order that the hearing be adjourned until December 6-15, 2021 via video conference hearing beginning at 930 am and that the surveillance video and report be excluded.

Footnotes

1. 1Applicant vs. Northbridge Insurance Company, 2020 CanLII 12757 (ON LAT), 2020CanLII 12757 (ON LAT); Aviva Insurance Company 2019 ONLAT 18-001359/AABS; Cox vs. Wawanesa Mutual Insurance Company 2021 ONLAT 19-012281/AABS