Gilani v. Travelers Insurance Company of Canada, 2021 CanLII 64237

Licence Appeal Tribunal

Citation: Gilani v. Travelers Insurance Company of Canada, 2021 ONLAT 19-009248/AABS

Released Date: 07/12/2021

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

Decision made by: Paul Gosio

Date of Decision: June 10, 2021

APPEARANCES:

For the Applicant: Joseph Campisi and Ashu Ismail, Counsel

For the Respondent: Christopher Schnaar, Counsel

Motion Heard By Writing: May 17, 2021

OVERVIEW

1The applicant was injured in an automobile accident on December 5, 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 17, 2021, the applicant filed a motion seeking the following:

i. That the applicant be permitted to call an additional witness being Ms. Susan Bock-Camara, adjuster;

ii. That the applicant be permitted to call an additional witness being Ms. Sandra Best, Case Manager for the applicant; and

iii. That the Tribunal allow certain documents produced by Ms. Kristen McGrath in her updated clinical notes and records, as requested by the Respondent’s counsel, to be entered into evidence.

3The respondent submits that the applicant should not be allowed to rely on the two addition witnesses but consents to the filing and use of the new documentary evidence at the hearing.

4This Motion Decision deals with the relief sought. I have considered the submissions of the parties and the materials relied upon in support of those positions.

RESULT

5The applicant’s motion to add the two additional witnesses is dismissed. The filing and use of the new documentary evidence at the hearing is granted.

ANALYSIS

6The applicant seeks to call Ms. Bock-Camara (adjuster) as an additional witness. The applicant has already called and examined Ms. Mendoza who was the adjuster that oversaw the applicant’s claim from November 17, 2017 to late January 2021. The applicant’s claim was then transferred to Ms. Bock-Camara. The applicant submits that he should be permitted to call Ms. Bock-Camara because Ms. Mendoza did not have access to the complete accident benefits file when she was examined as she had stopped working for the respondent. The applicant submits that the logical solution then, is to call the current adjuster, Ms. Bock-Camara, as a witness.

7The applicant also submits that there have been “recent developments” in the claim that speak directly to the applicant’s level of impairment and attendant care needs. The applicant submits that these developments were discussed with Ms. Bock-Camara by the applicant’s treatment providers and have impacted the adjusting of the applicant’s claim. The applicant submits that he would be seriously prejudiced if Ms. Bock-Camara was prevented from speaking to her awareness and adjustment of the claim as a result of these developments.

8The applicant also seeks to call Ms. Best, who has been involved in the applicant’s case as a case manager since February 2021. The applicant submits that he would be greatly prejudiced if Ms. Best was not allowed to provide evidence of the applicant’s current impairment level and attendant care needs. The applicant submits that there is no prejudice to the respondent in allowing the summons of Ms. Best, as the respondent already has all the information and documents Ms. Best is expected to speak to. Ms. Best has written to the respondent multiple times in order to provide updates with respect to the applicant’s impairments and attendant care needs.

9The applicant further submits that there is no prejudice to the respondent in allowing Ms. Bock-Camara and Ms. Best to be called, and that In the event that it is found that there would be prejudice to the respondent, the prejudice can be cured by a brief adjournment.

10I have denied the applicant’s request to add the two additional witnesses for the following reasons. First, the addition of the two new witnesses would be in defiance of the disclosure requirements set out in Adjudicator Driesel’s Order issued on August 7, 2020. The Order indicated that the parties were to disclose the evidence and witnesses that they were going to rely on by February 9, 2021. No motion was brought to vary or extend this deadline. The applicant’s confirmed witness list did not include Ms. Best nor Ms. Bock-Camara, even though the applicant was aware of the transfer of his file to Ms. Bock-Camara. Nothing prevented the applicant from including Ms. Bock-Camara and/or Ms. Best on the witness list he submitted. The timelines of the Order are there to ensure that the parties have a fair hearing and that no party is surprised by last minute evidence at the hearing.

11Second, the purpose of the Rules is to ensure a fair, efficient, and timely resolution of the matter at hand. The hearing was originally set for six days. Nine additional days have already been added and the addition of two further witnesses would cause further delay. Further delay, under these circumstances is not justified particularly given that the evidence to be gathered from the testimony of both Ms. Bock-Camara and Ms. Best can be deduced, in part, through the documentary evidence that the respondent is consenting to being admitted. I also note that the applicant, the applicant’s wife, and Ms. McGrath have all provided testimony relating to “recent developments” affecting the applicant. Details of these “recent developments” and communication of these developments to Ms. Bock-Camara are on the record before the Tribunal.

Additional Documentary Evidence

12On consent of the parties, the following documentary evidence is entered into evidence:

i. A letter from Ms. Sandra Best dated April 15, 2021;

ii. A letter from Ms. Kristen McGrath dated March 3, 2021;

iii. A letter dated March 5, 2021 regarding the approval of an apartment rental; and

iv. A letter dated April 27, 2021, regarding the Temporary approval of attendant care at the rate of $6,000 per month.

ORDER

13The applicant’s motion to add the two additional witnesses is dismissed. The filing and use of the new documentary evidence at the hearing is granted.