DN and Aviva Insurance, 2017 CanLII 85686 ON LAT 17-004104

May 24, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

DN and Aviva Insurance, 2017 CanLII 85686 ON LAT 17-004104

Date of Decision: October 25, 2017
Heard Before: Cezary Paluch, Adjudicator

A case conference took place on August 28, 2017, and an order was issued on August 30, 2017 scheduling a written hearing for October 30, 2017.  The Order required HN to produce to Aviva by September 15, 2017 the following:

1. applicant’s employment file;
2. clinical notes and records of HN’s psychologist from one year prior to the motor vehicle accident to date; and
3. clinical notes and records from HN’s family physician from one year pre-accident to date.

The Order also outlined deadlines for the parties to serve and file with the Tribunal their written submissions as follows:

1. DN’s submissions by September 25, 2017;
2. Aviva’s submissions by October 9, 2017, and
3. DN’s reply by October 23, 2017.

HN did not file his submissions by the September 25, 2017 deadline although he did file his submissions 15 days later on October 10, 2017. Aviva filed its submissions by October 9, 2017 (prior to having the benefit of HN’s submission).

On September 29, 2017, Aviva filed a Notice of Motion requesting the following:

1. further productions;
2. further extension of time for respondent’s submissions; and
3. costs in the amount of $750.00.

On October 16, 2017, Aviva filed an Amended Notice of Motion requesting the following:

1. dismissal of HN’s application; and
2. costs in the amount of $750.00.

On October 20, 2017, HN filed responding motion materials opposing the motion and requesting $500.00 in costs against Aviva related to this motion.

At the motion, Aviva also verbally requested an alternative remedy if their request for a dismissal was denied as follows:

1. enforcement of the production order; and
2. further directions to address the non-compliance with the Order in the form of extension of time to file additional submissions.

RESULT:

1. Aviva’s request to dismiss HN’s Application is denied.
2. The written hearing date is changed from October 30, 2017 to November 20, 2017.
3. Aviva shall be allowed to serve and file Supplementary Submissions by November 10, 2017.  These shall be limited to 10 pages and double spaced.
4. HN shall be allowed to serve and file Supplementary Reply Submission by November 15, 2017. These shall be limited to 5 pages and double spaced.
5. Any reference in HN’s submissions, reply, or supplementary reply submissions, to notes and records of HN’s family physician,  and notes and records of HN’s psychologist shall be excluded from the hearing record.
6. The issue of costs shall be dealt with by the hearing adjudicator.

ANALYSIS AND REASONS:

Non-Compliance with the Order

Aviva submitted that HN has failed to provide the notes and contrary to paragraph 3(ii) of the Order.

The Adjudicator accepted that HN’s representative misinterpreted or misunderstood the Order and believed that there was psychotherapy information that was requested and not the existing notes and record.  With respect to the notes and records of the family doctor Aviva stated that notes and records up to August 2015 were provided (which was up to after the accident) but conceded that these records from that date until August 28, 2017 have never been provided to Aviva because of the time it would take to obtain them and prohibitive costs that HN was unable to incur.  In addition, HN’s representative submits the notes and records were not relevant to the issues in dispute.

The Order required that HN serve and file their written submissions by September 25, 2017.  At some point after the case conference, Aviva representative agreed to allow HN until September 29, 2017 to file his submission. However, HN still did not file his submissions until October 10, 2017.  This was clearly in contravention of the Order (September 25) and the agreed upon extension amongst the parties (September 29). At the motion, HN representative did not have any explanation for the delay in filing his materials other than that he apparently sought some form guidance from the Tribunal. No motion was ever brought by HN requesting an extension to the submission date.

Based on the failure of HN to file his submission on time and provide the required disclosure, Aviva’s primary position on this motion is that HN’s Application should be dismissed.  HN relied on section 4.1(1)(c) of the Statutory Powers and Procedures Act (“SPPA”), that allows a Tribunal to dismiss a proceeding without a hearing if “some aspect of the statutory requirements for bringing the proceeding has not been met.” Aviva’s counsel submitted that the provisions in the Order constitute “some aspect of the statutory requirements” that have not been met. They did not cite any Tribunal decision or relevant case law to support this position.

The Adjudicator pointed to Rule 3.4 Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) reflects section 4.6 of the SPPA and provides as follows:

3.4      DISMISSAL WITHOUT A HEARING (GROUNDS FOR DOING SO)

The Tribunal may dismiss an appeal without a hearing if:

(a)         The appeal is frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process;
(b)         The appeal relates to matters that are outside the Tribunal’s jurisdiction;
(c)         Any of the statutory requirements for bringing the appeal have not been met; or
(d)         The party filing the appeal has abandoned the proceeding.

The Adjudicator notes that this relates to statutory provisions having not been met to entertain a dismissal request - not provisions in an order. In my view, a “statutory provision” is a specific section in a statute or law or regulation and not a provision in a Tribunal Order.  Moreover, before dismissing an appeal, Rule 3.5 provides that the Tribunal must give the parties notice of its intention to dismiss, provide the reasons for its intended decision to dismiss, and inform the parties of their right to make written submissions to the Tribunal within the time limits set out in the notice, which shall be at least 10 days. There is good reason behind Rule 3.5 as to dismiss a claimant’s Application is a serious remedy that should be used sparingly with utmost caution in unusual circumstances. In this motion, this rule has not formally been complied with and therefore HN’s request to have the Application dismissed is denied.

The Amended Notice of Motion was served on HN on October 16, 2017 (7 days before the motion hearing). The wording of the Notice of Motion Hearing sent to the parties refers to Aviva’s order for production, extension of time for Aviva’s submissions and costs but not to a request to dismiss.  This is understandable as it was based on the original Notice of Motion dated September 29, 2017.  When the amended Notice of Motion was filed it appears no new or amended Notice of Motion was ever provided to the parties. Rule 3.5(a) specifically requires for the Tribunal to give parties notice of its intention to dismiss. It could also be argued that HN did have proper notice regarding the dismissal request as his responding motion materials address the dismissal issue. The Adjudicator noted that even if a proper Notice of Motion was provided to the parties to comply with Rule 3.5, he still not have dismissed the Application because Aviva did not satisfy any of the grounds in Rule 3.4.

Request for Enforcement of the Order/Further Directions

HN’s alternative request in their motion is for the Tribunal to enforce the production of the medical records in the Order, further directions and costs to address the unique circumstances of this case given that Aviva filed their submissions without the required disclosure and without the benefit of having first received the application’s submissions.

It is clear that HN has not provided the required medical notes and records to Aviva. The Adjudicator noted that the Order used the word shall in requiring HN to provide the disclosure to Aviva. The use of the word “shall” meant that this information was mandatory and HN had no discretion not to provide it without a further order of the Tribunal.  Moreover, paragraph 1 of the Order confirms that the terms of the order were agreed to on consent of both parties. The Adjudicator did not accept HN’s explanation that the medical notes and records are not relevant for the purposes of the issues to be decided at the hearing. This was something that should have been dealt with at the case conference. Instead, HN agreed to provide the information. Disclosure is always important in insurance law cases.  Disclosure is particularly important in this case, where there is a request for an award under Regulation 664 because Aviva withheld or delayed payment. Failure to make disclosure frustrates the Tribunal’s ability to determine the issues and the parties to make full and fair submissions. Tribunal Court orders should also be followed. When they are not followed, there should be consequences.

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