PROCEDURAL ORDER
Licence Appeal Tribunal File Number: 22-005296/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:
Rizwan Sharief
Applicant
and
Pembridge Insurance
Respondent
PROCEDURAL ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Rizwan Sharief, Applicant
Ilia Estrah, Counsel
For the Respondent:
Sara Azghadi, Counsel
Date of Order:
June 12, 2023
BACKGROUND
1Rizwan Sharief, the applicant, was involved in an automobile accident on April 22, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Pembridge Insurance (“Pembridge”), and applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for the resolution of this dispute.
PRELIMINARY ISSUE
2The parties attended a case conference on February 24, 2023. At the case conference, the respondent requested that the Tribunal make a determination on the applicant’s alleged failure to respond to the section 33 request for information in relation to the income replacement benefit (“IRB”). The Tribunal ordered that this matter proceed in advance of the substantive issue hearing.
3On April 20, 2023, the Tribunal contacted the parties and asked if they would be agreeable to have the issue regarding the section 33 request heard at the substantive issue hearing as it is not a preliminary issue. The applicant’s counsel informed the Tribunal that he was agreeable. However, the respondent’s counsel informed the Tribunal that she was not.
4The parties were asked to provide submissions regarding their respective positions. The applicant did not provide any submissions.
5According to the respondent, although section 55(1) of the Schedule may not be applicable to this case, the Tribunal has the jurisdiction to order a preliminary issue hearing in any matter which would nevertheless dispose of an entire application. Namely, section 55(1) is not the only means by which preliminary issue hearings are heard and applications are disposed of at the Tribunal.
6The respondent submits that there are two factors that favour proceeding with the section 33 non-compliance issue rather than having it heard at the substantive issue hearing. First, in the interest of efficiency, proportionality, and timely resolution of the merits, the preliminary issue should not only focus on the applicant’s compliance with the deadlines set by section 33, but also whether he provided a reasonable explanation for the delay in compliance. If the applicant fails on both points, then the respondent relies on the authority of Rejin v. Pembridge Insurance Company, 2022 CanLII 136076 (“Rejin”). It is the respondent’s position that there is no reason to proceed to a substantive hearing on entitlement and quantum.
7Second, a main consideration in this claim is whether the applicant has provided the respondent and the Tribunal with sufficient information to quantify the weekly IRB amounts allegedly owed to him for the two years in dispute. If this question is answered in the negative, then the issue of entitlement is moot and the application may be disposed of in its entirety. It is the respondent’s position that this conclusion may be reached at either the preliminary issue or substantive hearing stage, but it is more efficient and cost-effective to proceed at the earlier stage rather than the later stage.
ANALYSIS
8Section 55(1) of the Schedule sets out the circumstances where the Tribunal may restrict an application from proceeding. In my view, section 33 non-compliance does not fall within the categories that have been set out in section 55(1). Although the Tribunal may have considered the section 33 non-compliance as a preliminary issue in the past, in my view, it is not a preliminary issue. Rather, it is a defence that the respondent can raise. Moreover, I do not find Rejin to be persuasive because the Tribunal did not consider whether the section 33 argument should have been heard alongside the substantive issues. The Tribunal simply determined whether the respondent was liable to pay the IRB due to the applicant’s non-compliance with the section 33 requests. Furthermore, I am not bound to follow it and decline to do so.
9The respondent’s submissions presume that they will be successful in this matter. However, the matter must be adjudicated by the Tribunal. In the event that the respondent is unsuccessful, then the matter would proceed to the substantive issue hearing. This would result in the scheduling of two hearings, which is not efficient or a good use of the Tribunal’s resources or the parties’ time. As the only issue in dispute is the IRB, it would be more efficient to have one proceeding where the entitlement/quantum and section 33 non-compliance are both addressed especially given that there will likely be an overlap between the evidence.
10The Tribunal derives its authority to control it’s process and make such orders from the Statutory Powers Procedure Act, R.S.O. 1990 (“SPPA”), the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G (the “LAT Act”) and the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended (the “Common Rules”). The relevant sections are as follows:
i. Section 25.0.1(a) of the SPPA, a Tribunal may make orders with respect to the procedures and practices that apply in any particular proceeding.
ii. Sections 16.1(1) and 16.1(2) of the SPPA allow the tribunal to make interim decisions and orders and impose conditions.
iii. Section 21 of the SPPA: a hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.
iv. Section 2: of the SPPA: This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
v. Section 3(2) of the LAT Act: Except as limited by this Act, the Tribunal has all the powers that are necessary or expedient for carrying out its duties.
vi. Rule 3.1(b) of the Common Rules: These Rules will be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative, or at the request of a party, ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal
11For the purposes of efficiency, I find that it would be more practical to have this issue addressed together with the substantive issues. This is a more appropriate approach as opposed to having issues that pertain to the IRB heard separately.
ORDER
12It is ordered that issue 2(i) in the Case Conference Report and Order dated February 24, 2023 will be heard along with the substantive issues at the substantive issue hearing on August 24, 2023.
13The Tribunal will rely on the written submissions and evidence that have already been provided by the parties in relation to the section 33 arguments.
14Except for the provisions contained is this order, all previous orders made by the Tribunal remain in full force and effect.
15If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
Released: June 14, 2023
___________________________
Tavlin Kaur
Adjudicator