22-010938/AABS - M

Licence Appeal Tribunal File Number: 22-010938/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:

[K.C.]

Applicant

and

Primmum Insurance Company

Respondent

MOTION ORDER

ADJUDICATOR:

Lindsay Lake, Vice-Chair

APPEARANCES:

For the Applicant:

Joanna Sweet, Counsel

For the Respondent:

No submissions were requested

Motion heard in writing:

January 9, 2024

BACKGROUND

1The applicant was injured in an automobile accident on May 7, 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 June 19, 2023 and a Case Conference Report and Order (CCRO) was issued to the parties on June 23, 2023. Paragraph 11 of the CCRO states that the respondent was to provide the applicant with, amongst other things, the following documents by no later than July 19, 2023:

a. Copies of all surveillance reports, still photographs, or videotapes with respect to any surveillance undertaken in accordance with the LAT Rules of Practice and Procedure, if intending to rely on it;

b. All clinical notes and records created by each Section 44 evaluator in relation to the issues in dispute;

c. Complete accident benefit file;

d. Any final reports, issued by each of the Section 44 assessors in relation to the issues in dispute;

e. All communication correspondence between the insurer and Cira Health Solutions as it relates to the issue above; and

f. All communication correspondence between Cira Health Solutions and the Section 44 medical assessors as it relates to the issue above.

4A 5-day videoconference hearing is scheduled in this matter to commence on February 5, 2024.

MOTION

5On January 9, 2024, the applicant filed a Notice of Motion requesting that the Tribunal:

a. Order the respondent to produce to the applicant the productions as set out above in paragraph [3] and in the CCRO; and

b. Order costs payable to the applicant in the amount of $750.00.

RESULT

6The applicant’s motion for a further production order compelling the respondent to comply with the CCRO is denied.

7I decline to make an order as to costs at this time. Instead, the following issue is added to the issues in dispute:

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

ANALYSIS AND REASONS

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

8The productions sought by the applicant were previously ordered to be produced by the respondent in the CCRO, which is also an Order of the Tribunal. A further order is duplicative and redundant.

9While I appreciate the applicant’s submissions that it would be highly prejudicial for the applicant to proceed to the hearing without having the opportunity to review and respond to the outstanding productions, the risk of prejudice can be mitigated as a 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.

10In 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. 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.

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

11In its motion materials, the applicant requested an order for costs in the amount of $750.00.

12Rule 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.

13As the parties will be proceeding to hearing on the substantive issues, I order that the following issue is added to the issues in dispute:

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

14I 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.

ORDER

15The applicant’s motion for a further production order compelling the respondent to comply with the CCRO is denied.

16The following issue is added to the issues in dispute:

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

17Except for the provisions contained in this Order all previous Orders made by the Tribunal remain in full force and effect.

18If the parties reach an agreement on the issues in dispute, the applicant shall immediately advise the Tribunal in writing.

19I am not seized of this matter.