Applicant fails to attend motion hearing - insurer's submissions allowed - Applicant and Aviva Insurance Canada, 2017 CanLII 77342 ON LAT 17-002907

May 24, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Aviva Insurance Canada, 2017 CanLII 77342 ON LAT 17-002907

Date of Decision: October 27, 2017
Heard Before: Adjudicator Catherine Bickley

MIG and MEDICAL BENEFITS: Applicant fails to attend a motion hearing; adjudicator admits insurer’s reports; no prejudice to applicant as there is clear evidence applicant also received the reports

This order grants Aviva’s motion to admit two s.44 assessment reports as well as supplementary written submissions.

BACKGROUND

At a July 5, 2017 case conference, a written hearing was set for October 31, 2017. The case conference order set timelines for the parties’ written submissions.  Aviva made its written submissions as scheduled on October 10, 2017.   Three days later it received two s.44 assessment reports dated October 10, 2017. That same day, it sent the reports to the applicant.

Both reports flow from a s.44 assessment conducted on September 20, 2017.

THE MOTION HEARING

No-one representing the applicant attended the motion hearing. The Tribunal’s case management officer attempted unsuccessfully to contact the applicant’s counsel.  From my review of the file, the Adjudicator was satisfied that the applicant received notice of the motion.  That notice, dated October 19th, told the applicant that he could file responding materials and submissions on the motion by October 24th.  He did not do so.   

After waiting 15 minutes (half the time scheduled for the motion hearing), the Adjudicator asked Aviva for its submissions.  It submitted that the motion should be granted.  If the applicant had not cancelled the original assessment appointment (August 16, 2017), Aviva would have had the reports in time to include them with its response.  Further, the applicant addressed the two reports in his reply, thus appearing to accept that the reports formed part of the written hearing materials.

The motion to admit the reports and supplementary submissions is granted.  The delay in obtaining the reports appears due, at least in part, to the applicant’s cancellation of the earlier assessment date.  There is no prejudice to the applicant as he has had an opportunity to review and respond to the reports.  The motion also sought to extend time lines.  There is no need to do so as the applicant has addressed the reports in his reply.  The written hearing will proceed as originally scheduled on October 31, 2017.

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