Licence Appeal Tribunal
22-010528/AABS - M
Licence Appeal Tribunal File Number: 22-010528/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:
[S.V]
Applicant
and
TD General Insurance Company
Respondent
MOTION ORDER
ADJUDICATOR:
Lindsay Lake, Vice-Chair
APPEARANCES:
For the Applicant:
No submissions were requested
For the Respondent:
Annemarie White, Counsel
Motion heard in writing:
December 18, 2023
BACKGROUND
1The applicant was injured in an automobile accident on July 30, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).
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 May 19, 2023 and a Case Conference Report and Order (CCRO) was issued to the parties on May 31, 2023. Paragraph 4 of the CCRO states that the applicant agreed to provide the following, amongst other things, to the respondent by no later than June 19, 2023:
a. Decoded OHIP Summary for the period of 1-year pre-accident to date;
b. Clinical notes and records (CNRs) of the applicant’s treating psychologist for the period of 1-year pre-accident to date;
c. The applicant’s Record of Employment for [U.M.L];
d. T1 general for the period of 2020 to 2022; and
e. Will continue to make best efforts to acquire the [U.M.L] Employment File.
4The CCRO also stated that applicant agreed to provide the respondent with particulars of their claim for an award under Regulation 664 within 30 calendar days after receiving the adjusters’ log notes.
5A videoconference hearing is scheduled to commence in this matter on January 9, 2024.
MOTION
6On December 8, 2023, the respondent filed a Notice of Motion requesting that the Tribunal:
a. Order the applicant to produce to the respondent the productions as set out in paragraph [3] above and in the CCRO;
b. Order that the applicant’s claim for an award under Regulation 664 is dismissed for failure to provide particulars within 30 days of receipt of the adjusters’ log notes; and
c. Order that this matter is consolidated with the application in Tribunal File No. 23-009669/AABS such that both matters proceed to the videoconference hearing on January 9, 2024.
RESULT
7The respondent's motion is denied.
ANALYSIS AND REASONS
The respondent’s request for a further production order is denied
8The respondent submitted that the productions set out at paragraph [3] above have not yet been produced by the applicant in accordance with the CCRO. As a result, the respondent seeks an order compelling the applicant to produce these documents to the respondent.
9The productions sought by the respondent were previously ordered to be produced by the applicant in the CCRO, which is an Order of the Tribunal. A further order is duplicative and redundant.
10A hearing adjudicator can provide relief as a result of a party’s failure to produce records as ordered by the Tribunal. The Tribunal can grant remedies for non-compliance, such as attaching diminished weight to late-produced evidence or drawing adverse inferences from a party’s failure to produce records. It is also open to the hearing adjudicator to consider the merits of the case based on the available evidence and the parties can make submissions as to how weight should be apportioned to this evidence.
11In summary, the Tribunal’s production order in the CCRO continues in force and requires no sequel. Parties fail to comply with these orders at their own risk; the risk that a hearing adjudicator may find against them for failing to meet their onus, or for causing prejudice to the opposing party.
The respondent’s request to dismiss the applicant’s claim for an award is denied
12The respondent submitted that the applicant has failed to provide particulars of their claim for an award under Regulation 664 within 30 calendar days after the respondent provided the adjusters’ log notes to the applicant on June 23, 2023. As a result, the respondent’s position is that the applicant’s claim for an award be dismissed.
13The respondent relied upon the Tribunal decision in 18-000420 v. Intact Insurance Company, 2019 CanLII 22184 (ON LAT) (18-000420) where, according to the respondent’s submissions, the Tribunal dismissed the applicant’s claim for an award due to the applicant’s failure to provide particulars.
14The decision in 18-000420 is distinguishable as the applicant’s claim for an award was dismissed after a written hearing was held. No hearing has yet been held in this matter. Further, the denial of the claim for an award in 18-000420 was not solely because of the applicant’s failure to provide particulars.
15The respondent is seeking a determination on a substantive issue in dispute by way of a motion. This is not a proper use of the Tribunal’s processes. Further, and as discussed above, there are other remedies available when a party fails to comply with Tribunal orders.
The respondent’s request to consolidate this matter with Tribunal File No. 23-009669/AABS is denied
16The respondent has also requested that this application be consolidated with Tribunal File No. 23-009669/AABS such that both matters would proceed to the videoconference hearing scheduled to commence on January 9, 2024.
17Rule 20.5 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules) states that the Tribunal may combine two or more applications involving the same parties or the same accident on the consent of the parties.
18The respondent has not provided evidence that the applicant consents to have the two matters combined and, for this reason, the respondent’s request is denied.
19The respondent’s request is also untimely. The application in Tribunal File No. 23-009669/AABS was filed on August 16, 2023. The respondent, however, waited until approximately one month prior to the scheduled hearing in this matter to bring its motion seeking the combination of the two files. The respondent provided no explanation for the delay in making its request.
ORDER
20The respondent's motion is denied.
21Except for the provisions contained in this Order all previous Orders made by the Tribunal remain in full force and effect.
22If the parties reach an agreement on the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
23I am not seized of this matter.
Released: December 19, 2023
Lindsay Lake, Vice-Chair