Licence Appeal Tribunal File Number: 20-009648/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:
Cardirgamanathan Murukesu
Applicant
and
RSA Insurance
Respondent
AFDJOURNMENT ADJOURNMENT DECISION AND ORDER
VICE-CHAIR:
Chloe Lester
APPEARANCES:
For the Applicant:
Cardirgamanathan Murukesu, Applicant
Andrew Franzke, Counsel
For the Respondent:
Lisa Dely, Representative
Jennifer Sweitzer, Counsel
Symone Marlowe, Counsel
Interpreter:
Sri Ranjani, Tamil Language
Court Reporter
Michelle Gordon
Held by Videoconference:
May 9, 2022
BACKGROUND
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”) arising out of a motor vehicle accident on June 21, 2019.
2The applicant applied to the Licence Appeal Tribunal Automobile Accident Benefits Service (“Tribunal”) to resolve that dispute. A case conference took place and a hearing was set for May 9-13, 2022.
ISSUES IN DISPUTE
3The issues in dispute are listed in the Case Conference Report and Order.
MOTION FOR AN ADJOURNMENT
4On the Friday before the hearing, the applicant filed a motion to adjourn the hearing. The respondent submitted response material over the weekend and on day one of the hearing, I heard the motion to adjourn the hearing.
5The applicant argued he is having difficulties securing two witnesses for the hearing and obtaining records from his treating clinic Scarborough Rehabilitation (the clinic). A few weeks ago, the applicant argued that it began discussions with the clinic regarding having the witnesses attend and obtaining the requested records. In his words, the applicant argued that Scarborough Rehabilitation has not cooperated with their requests. The applicant served a summons for the psychologist, the occupational therapist and the clinic director to attend this hearing. The applicant claims it would be prejudiced by continuing with this hearing absent the witnesses and medical evidence as they are crucial in proving their case. The applicant relied on a previous decision1 from the Tribunal that granted an adjournment on the basis that “the Tribunal prefers to adjudicate claims on a complete evidentiary basis.” The applicant argued that he made good faith attempts to secure the attendance and records of the witnesses.
6The respondent argued that the application was filed in 2020 with a case conference that took place in 2021. The respondent argues that the applicant has had ample opportunity to summons the witnesses and obtain the documents. The respondent argues that the applicant should have begun this process earlier and that he would have had time to request the records via a motion. The respondent argues that they are prejudiced by adjourning this hearing as they have already paid and summoned five witnesses and incurred legal fees in preparation for this hearing.
7The applicant replied that the Tribunal is a no-cost regime and therefore incurring expenses for a hearing should not be a consideration for dismissing a request for adjournment. The applicant argued he preferred to have the witnesses attend on their own accord but then issued the summons the week before the hearing because of the various emails it received from the clinic.
8The motion for an adjournment is denied. It is the legal obligation of the individual being summoned to attend the hearing on the date and time set by the Tribunal. In exceptional circumstances, adjournments may be granted because a witness cannot attend the hearing. In this case, I have no such reasons other than the clinic advised that the witnesses are unavailable. This type of generic response is unacceptable. Summonses issued by the Tribunal must be taken seriously, and failure to do so could result in fines and/or jail time.
9Upon consideration of the Tribunal’s decision the applicant is relying on to support his request, I have to disagree with the conclusion in it. The Tribunal cannot continuously grant adjournments because a party fails to receive documents or to accommodate witnesses’ schedules. Again, adjournments must be granted in exceptional circumstances. If this were the Tribunal’s approach it would create a backlog at the Tribunal and would inhibit other applicants’ access to efficient, proportional, and timely resolution2 of the merits of their proceedings before the Tribunal. The hearing dates are scheduled far enough in the future that witnesses should be advised of their required attendance immediately after dates are set. If adjustments to the hearing dates are required, it can do so at that time, and not on the eve of the hearing.
10I agree with the respondent’s arguments and the motion to adjourn the hearing is denied.
CONCLUSION AND ORDER
11The motion to adjourn the hearing is denied. After receiving my oral decision, counsel for the applicant requested a short break to discuss my decision with his client. Upon returning, counsel for the applicant advised that they would be withdrawing the application.
12The Tribunal will now close its file.
Released: May 27, 2022
Chloe Lester
Vice-Chair