Licence Appeal Tribunal
Tribunal File Number: 20-006792/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Georgia Godber
Applicant
and
Aviva Insurance Company
Respondent
MOTION ORDER
Order made by: Ian Maedel, Vice Chair
OVERVIEW
1The applicant was injured in an automobile accident on January 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3A case conference took place on March 8, 2021 before Adjudicator Tillman. The matter was scheduled for a written preliminary issue hearing on July 12, 2021. A substantive videoconference hearing was also scheduled for March 21-24, 2022.
NOTICE OF MOTION
4On July 14, 2021, the respondent filed a Notice of Motion requesting that the Tribunal;
i. Strike the applicant’s sur-reply submissions dated July 9, 2021.
PARTIES’ POSITIONS
5The respondent submits that sur-reply submissions should only be permitted in exceptional circumstances, yet no leave was sought by the applicant to file additional written preliminary submissions. The respondent submits the applicant has failed to particularize claims of “incorrect” or “surprise” statements made in the respondent’s reply submissions. Similarly, the applicant’s sur-reply submissions contain no relevant information to assist the Tribunal beyond what has already been provided in the applicant’s initial written submissions. This is merely the applicant’s attempt to seek the last word, without leave or merit, and should be struck from the record as a result.
6The applicant submits she is simply attempting to correct false and misleading statements made in the respondent’s reply submissions. This is an appropriate basis for sur-reply, and there is no Tribunal rule indicating that leave is required to file sur-reply submissions. Similarly, there is nothing in the previous Case Conference Report and Order that specifically disallowed for sur-reply submissions. Procedural fairness demands these clarifications and corrections be made to the record, given the seriousness of the preliminary relief sought, and the potential dismissal of this application pursuant to s. 55 of the Schedule.
ANALYSIS
7The respondent’s motion to strike the applicant sur-reply is denied.
8The Tribunal will only strike submissions when there is no other remedy available to address potential prejudice wrought to the parties. In this matter, there are alternative remedies available, like the provision of additional written submissions.
LEAVE TO FILE A SUR-REPLY
9The applicant does not deny that she failed to seek leave from the Tribunal to file these additional written submissions, and she further stated that there was no requirement for leave to file a sur-reply under the Tribunal’s Common Rules of Practice & Procedure (the “Rules”). The applicant also submits there is conflicting, non-binding Tribunal caselaw in which a sur-reply was admitted without leave.
10Despite this ambiguity suggested by the applicant, leave is required to file sur-reply submissions. Any party seeking to file sur-reply submissions is required to file a Notice of Motion, pursuant to Rule 15, and it must then satisfy the Tribunal that these submissions are required. This motion process permits the Tribunal to have a fulsome record, with evidence, regarding why these additional submissions should or should not become part of the record. This process also provides an element of procedural fairness and permits effective participation of the opposing party, providing it with the opportunity to provide submissions in response to the request (including the possibility of consenting to the inclusion).
11Rules 3.1(a) and 3.1(b) of the Rules speak to liberal interpretation of the Tribunal’s rules to promote a fair, open, accessible process and to ensure efficient, proportional and timely resolution of matters on their merits. Leave to file a sur-reply not only promotes consistency with application of the Rules, but it is also in line with s. 25.0.1 of the Statutory Powers Procedure Act (“SPPA”).
12Section 25.0.1 of the SPPA speaks to the Tribunal’s ability to determine its own procedures and practices. Similarly, Rule 23(1) permits the Tribunal to make such orders or directions that are considered proper to prevent an abuse of its processes.
13To be clear, the request for leave to file a sur-reply falls not only within the Tribunal’s own rules to ensure procedural fairness, efficiency, and consistency, but within the provisions of the SPPA to set procedures and prevent an abuse of processes.
14Taken together, I reject the applicant’s submissions that, because the Case Conference Report and Order was silent on the potential issue of sur-reply that it should otherwise be permitted, without leave. The previous Case Conference Report and Order clearly anticipated only three sets of preliminary submissions. No additional submissions were anticipated, and, therefore, leave to deviate from the form and substance of the Order is required. In other words, just because the sur-reply was not anticipated in the previous Order, does not mean that either party has the ability to simply file additional submissions for consideration by the Tribunal.
15Procedural fairness also demands there is an element of finality in the adjudicative process. This finality provides certainty to the process, such that parties are not left to wonder if additional submissions are required at some point in the future. Additional, unanticipated submissions may lead to a further delay in a process that was designed to be efficient and timely in determining disputes related to statutory accident benefits.
16The potential “snowball effect” is another real concern related to sur-reply submissions. Often these sur-reply submissions necessitate a further reply from the opposing party. This can lead to additional rounds of submissions that were not initially anticipated and may also compromise the efficiency of the adjudicative process—all the while requiring parties to take on ever-increasing costs.
17Tight hearing submission deadlines are not a reason to forego a Notice of Motion in these circumstances. A formal Notice of Motion is required to ensure the request for a sur-reply is addressed prior to consideration of the other hearing submissions by the hearing adjudicator. Without a Notice of Motion, the parties risk these sur-reply submissions being overlooked and a decision rendered by the Tribunal without their consideration.
18Given these concerns regarding finality, certainty, procedural fairness, hearing efficiency, and consistency, leave is required for parties seeking to file sur-reply submissions via a Notice of Motion properly filed pursuant to Rule 15 of the Tribunal’s Rules.
NATURE OF SUR-REPLY SUBMISSIONS
19Sur-reply submissions should only be provided in limited or exceptional circumstances. They are not intended to be an additional opportunity for parties to bolster their case or supplement previous submissions.
20Sur-reply submissions may only be necessary when a party has made additional legal arguments or introduced additional issues in reply, provided an inaccurate statement of the law, or an inaccurate statement of facts critical to the determination of the issues in dispute.
21Minimal corrections to secondary or tertiary issues that do not otherwise impact the ultimate determination of the issues in dispute, is not a valid reason to file a sur-reply.
APPLICATION TO THE PRESENT DISPUTE
22Although the applicant filed her sur-reply submissions without leave of the Tribunal, I am prepared to admit them into the record for the preliminary issue hearing of this matter.
23The Tribunal should have the complete evidentiary record before it, prior to making a reasoned decision on this matter. I am persuaded the applicant has provided these additional submissions in an effort to clarify statements made by the respondent in its reply submissions. I make no determination with regard to whether these alleged statements made by the respondent are misleading or false. However, given the concerns regarding procedural fairness raised by the respondent, I am prepared to permit the respondent a brief reply to the applicant’s sur-reply submissions.
24I am also acutely aware of the nature of the preliminary issue in dispute. The respondent is seeking to bar the applicant’s application before the Tribunal due to non-attendance at a s. 44 insurer’s examination pursuant to s. 55 of the Schedule. Given the nature of the preliminary issue and the risk of a complete bar to these benefits, the Tribunal shall have the most complete evidentiary picture before it. In this matter, the Tribunal record shall include an applicant’s sur-reply and may include a respondent’s reply to that sur-reply.
25As a final note, issues regarding the weight to be attributed to these submissions shall be left to the hearing adjudicator. For me to otherwise address issues related to the substantive nature of the preliminary issue in dispute may fetter the ultimate discretion of the hearing adjudicator.
ORDER
26The applicant’s sur-reply submissions shall be admitted into the hearing record.
27The respondent may file a brief reply to the applicant’s sur-reply submissions. These submissions shall be four (4) pages in length, double-spaced, twelve-point Arial or Times New Roman font. These submissions shall be filed by August 17, 2021.
28Once the respondent’s additional submissions are filed, there shall be no additional written submissions for the purposes of the preliminary hearing, without express leave of the hearing adjudicator.
29The written preliminary hearing scheduled for July 12, 2021 shall be adjourned.
30The written preliminary hearing shall be rescheduled for August 23, 2021.
OTHER PROCEDURAL MATTERS
31Except for the provisions contained in this Motion Order all previous orders made by the Tribunal remain in full force and effect.
32If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.
Date of Issue: August 3, 2021
Ian Maedel, Vice Chair