Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-010950/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:
Kandasamy Kugathasan
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
MOTION ORDER
ADJUDICATOR:
Lindsay Lake, Vice-Chair
APPEARANCES:
For the Applicant:
No submissions were requested
For the Respondent:
Eric Boate, Counsel
Motion heard in writing:
January 16, 2024
BACKGROUND
1The applicant was injured in an automobile accident on March 20, 2020 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 released to the parties on May 26, 2023. Paragraph 4 of the CCRO stated that the applicant agreed to provide the following documents to the respondent by no later than July 18, 2023:
a. A copy of the Motor Vehicle Accident Report and complete police file, if available;
b. Prescription summaries from all pharmacies attended from one year pre-accident to date;
c. Clinical notes and records from all treating physicians and medical facilities/clinics, including hospitals, attended from one year pre-accident to date;
d. A copy of the Ambulance Call Report and hospital records;
e. Clinical notes and records of family physician from one year pre-accident to date;
f. A complete copy of extended collateral benefits file;
g. A complete copy of decoded OHIP summary from one year pre-accident to date;
h. Particulars of any incurred treatment;
i. Any other relevant records in the Applicant’s possession.
4A written hearing is scheduled in this matter for February 2, 2024.
MOTION
5On January 10, 2024, the respondent filed a Notice of Motion requesting that the Tribunal:
i. Dismiss the application pursuant to Rule 3.4(c) of the Licence Appeal Tribunal Rules, 2023 (Rules) without a hearing; or
ii. In the alternative:
a. “The Respondent requests an Order pursuant to Rule 9.3 of the Tribunal’s Rules of Practice as the Applicant has not complied with section 9 of the Tribunal’s Rules of Practice;” and
b. An Order staying the proceeding until the applicant complies with the production order set out in the CCRO.
RESULT
6The respondent's motion is denied.
ANALYSIS AND REASONS
7Rule 3.4(c) of the Rules permits the Tribunal to dismiss an application without a hearing if the statutory requirements for bringing the appeal have not been met.
8Rule 15.1 of the Rules requires parties to file, along with their Notice of Motion, all evidence and submissions in support of the motion. Here, the thrust of the relief sought is the respondent’s position is that the applicant has not complied with the production order set out in the CCRO. The only submissions made by the respondent on the application of Rule 9.4(c) to this matter are as follows:
Therefore, an Order pursuant to Rule 3.4(c) of the Tribunal’s Rules of Practice dismissing the Applicant’s dispute before the LAT without a hearing is reasonable in the circumstances, as the Respondent is prejudiced as the Applicant has failed to make full disclosure in addition to producing relevant medical documentation and updated treatment records which is material to assessing the Applicant’s, inter alia, severity of the injuries, exacerbation of existing injuries in a subsequent accident, and level of functionality.
9These submissions do not point to how the statutory requirements for bringing this appeal have not been met. As a result, the respondent’s request for a dismissal of this matter without a hearing pursuant to Rule 3.4(c) is denied.
10Further, the respondent’s alternative request for a stay of proceedings is not an appropriate remedy for a party’s failure to comply with a production order of the Tribunal as a hearing adjudicator can grant relief in such circumstances. If a party’s failure to comply with a production order were to necessitate a stay of proceedings, parties could thwart the adjudication process simply by refusing to disclose records. Instead, the Tribunal can grant remedies for non-compliance, such as attaching diminished weight to late-produced evidence or drawing adverse inferences (which was noted by the respondent in its motion submissions at paragraph 17) from a party’s failure to produce records.
11The production order set out in the CCRO is an Order of the Tribunal which 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. It is open to the Tribunal to consider the merits of the case based on the available evidence and the parties can make submissions to the hearing adjudicator as to how weight should be apportioned to it.
12For all of these reasons, the respondent’s motion for stay of proceedings is denied.
13Finally, the respondent requested that an Order be issued pursuant to Rule 9.3 of the Rules as it is the respondent’s position that the applicant has not complied with Rule 9. However, it is open to the hearing adjudicator to make any findings regarding compliance with the production order set out in the CCRO. To make a decision regarding sufficiency of productions outside of the hearing could potentially fetter the discretion of the hearing adjudicator who is able to provide relief in such circumstances as discussed above in paragraph [10].
ORDER
14The respondent’s motion is denied.
15Except for the provisions contained in this Order all previous Orders made by the Tribunal remain in full force and effect.
16If the parties reach an agreement on the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
17I am not seized of this matter.
Released: January 17, 2024
Lindsay Lake
Vice-Chair