Licence Appeal Tribunal File Number: 22-011068/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:

Karthikah Arulvelchandran

Applicant

and

Allstate Insurance Company of Canada

Respondent

MOTION ORDER

ADJUDICATOR:

Lindsay Lake, Vice-Chair

APPEARANCES:

For the Applicant:

Ken Singh, Counsel

For the Respondent:

No submissions were requested

Motion heard in writing:

January 17, 2024

BACKGROUND

1The applicant was injured in an automobile accident on May 28, 2018 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 30, 2023 and a Case Conference Report and Order (CCRO) was issued to the parties on June 5, 2023. Paragraph 4 of the CCRO stated that the respondent agreed to provide the following documents to the applicant by no later than July 14, 2023:

a. An updated accident benefits (AB) file and summary of benefits paid to date;

b. Copies of all s. 44 insurer’s assessments along with copies of the CVs and complete file of all assessors;

c. Copies of all communication between the respondent and s. 44 assessors;

d. Copies of all CVs of persons who conducted and prepared the surveillance and/or investigation reports;

e. Adjusters’ log notes from the date of loss of up to the date of the case conference, redacted for privilege and reserves, with the basis for the redaction indicated; and

f. All surveillance evidence, including all unedited video, if the respondent intends to rely on surveillance evidence at the hearing.

4A written hearing is scheduled in this matter for March 1, 2024.

MOTION

5On January 15, 2024, the applicant filed a Notice of Motion requesting that the Tribunal order the respondent to produce the following documents to the applicant forthwith:

a. The complete AB file;

b. Copies of all s. 44 insurer’s assessments along with copies of the CVs and complete files of each assessors;

c. Copies of all communications between the respondent and s.44 assessors; and

d. Any surveillance reports or investigation reports along with supporting documentation.

6The applicant also sought an adjournment of the written hearing following the production of the requested documents and the applicant’s costs of bringing this motion.

RESULT

7The applicant’s motion for a further production order is denied.

8I decline to make an order as to costs at this time. Instead, the following issue is added to the issues in dispute:

Is the applicant entitled to costs because the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith?

9The applicant’s request for an adjournment of the written hearing is not properly before me and will not be considered as part of this motion.

ANALYSIS AND REASONS

The applicant’s motion for a further production order is denied

10It is the applicant’s position that the respondent has not fully complied with the production order set out in the CCRO. However, the applicant is seeking a production order for documents previously ordered to be produced by the respondent in the CCRO, which is also an Order of the Tribunal. Thus, a further order is duplicative and redundant.

11A 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.

12In summary, the Tribunal’s production order 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 Tribunal is able 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.

The applicant’s claim for costs is added as an issue in dispute

13In the applicant’s submissions, the applicant requested an order for costs for bringing this motion.

14Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 (Rules) provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

15As the parties will be proceeding to hearing on the substantive issues, I order that the following issue is added to the issues in dispute:

Is the applicant entitled to costs because the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith?

16I order that the issue of costs be added to the issues in dispute in this matter because:

a. The applicant is not out of time to request to add the issue of costs, as this request can be made at any time before a decision is released pursuant to Rule 19.2. of the Rules;

b. Adding the issue of costs now to the issues in dispute provides sufficient time for the respondent to prepare their response for the hearing; and

c. The applicant’s claim for costs is more appropriately dealt with by the hearing adjudicator to allow both parties to make fulsome submissions.

The applicant’s request for an adjournment will not be considered as part of this motion

17The applicant also sought an adjournment of the written hearing.

18Rule 16 of the Rules requires parties to request an adjournment using the form for requesting an adjournment on the Tribunal’s website. Rule 16.1 also states that failure to provide a completed Request for an Adjournment form will result in the request not being considered by the Tribunal. As a result, the applicant’s request for an adjournment request is not properly before me and will not be considered as part of this motion.

ORDER

19The applicant’s motion for a further production order is denied.

20I decline to make an order as to costs at this time. Instead, the following issue is added to the issues in dispute:

Is the applicant entitled to costs because the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith?

21The applicant’s request for an adjournment is not properly before me and will not be considered as part of this motion.

22Except for the provisions contained in this Order all previous Orders made by the Tribunal remain in full force and effect.

23If the parties reach an agreement on the issues in dispute, the applicant shall immediately advise the Tribunal in writing.

24I am not seized of this matter.