Multiple Adjournments Ruled Unavoidable

April 14, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

M.P. and Northbridge
Case: 16-001394 2017 CanLII 16551 (ON LAT)

Adjournment of Hearing- NEBs; Statutory limits; multiple adjournments by injured party; exceptional circumstances do not equate stalling of a case;

Date of Decision: March 28,  2017
Heard Before:  Heather Trojek, Vice Chair

OVERVIEW

On March 17, 2017, M.P. filed a request to adjourn the written hearing scheduled to take place on April 24, 2017. Northbridge did not consent to the adjournment. For the reasons provided below, M.P.’s request for an adjournment of the hearing is granted. The Tribunal will book a resumption of the case conference in order to set a new hearing date and a new timetable for the filing of evidence and submissions. 

BACKGROUND

M.P. was injured in car accident on January 17, 2013 and sought benefits pursuant to the SABs. She applied to the LAT on July 18, 2016. A case conference was booked for October 17, 2016. An adjournment request was granted because M.P. had to attend the funeral of a family member.

A second case conference took place on November 28, 2016. Northbridge requested an adjournment in order to review an occupational therapy report, which it recently received from M.P.. The report is dated September 22, 2016. Northbridge’s adjournment request was denied. Northbridge also raised a preliminary issue that because of the two-year statutory limitation period, M.P. was barred from disputing her ongoing entitlement to NEBs. A written hearing was scheduled with the consent of the parties for February 21, 2017 to determine the preliminary and substantive issues in dispute.

On January 12, 2017, M.P. asked for an adjournment of the February 21, 2017 hearing as she had been hospitalized with multiple fractures and was unable to attend an assessment needed to support her claim.  Northbridge opposed the adjournment. The adjournment was granted, as was M.P.’s request to resume the case conference.

The parties attended the second case conference on January 27, 2017. The preliminary issue hearing was scheduled to proceed as previously scheduled on February 21, 2017. If the preliminary issue hearing was decided in M.P.’s favor, the parties agreed that a written hearing on the substantive issues would proceed on April 24, 2017.

On February 8, 2017, Northbridge withdrew its preliminary issue motion. The February 21, 2017 hearing did not proceed as M.P.’s right to dispute her entitlement to non-earner benefits was no longer an issue in dispute between the parties. The Tribunal sent a notice of the April 24, 2017 hearing to the parties on February 22, 2017.

CURRENT ADJOURNMENT REQUEST

M.P. submitted a request to adjourn the April 24, 2017 hearing because she had sustained multiple fractures to her leg and was hospitalized. Because of her leg injury and hospitalization, she had to reschedule an assessment, which had been booked to proceed in March. The earliest date M.P. proposes for the hearing to proceed is June 20, 2017.

Northbridge’s counsel wrote to the Tribunal objecting to the adjournment of the hearing. Northbridge argued

1) that M.P. should have had the medical reports she intended to rely on prior to submitting her application to the Tribunal and

2) that her ongoing requests for adjournments are counter to the Tribunal’s mandate to determine disputes within a six-month period.

On March 22, 2017 M.P. responded to Northbridge’s. M.P. explains that she had an assessment booked in October 2016 that had to be cancelled in order for her to attend the funeral. She could not attend a rescheduled assessment in January 2017 because she was hospitalized because of multiple fractures in her leg. She was admitted to hospital again due to complications and underwent surgery on her leg in March 2017. The assessment that she had rescheduled to take place in March had to be cancelled due to her leg surgery and the time needed for her recovery. M.P. submits that she is not attempting to cause undue delays in the proceedings but has been unable to comply with the timelines she had previously agreed to due to unanticipated circumstances.   

ANALYSIS AND REASONS

The Tribunal has an obligation to ensure a fair, just, expeditious and cost efficient determination of every case on its merits. The Tribunal’s expectation is that when a party files an application it is ready to resolve the issues in dispute or proceed to a hearing. This expectation applies to both parties. The Tribunal’s ability to meet its mandate to provide timely and expeditious hearings is thwarted when parties begin to prepare their cases only after an application is filed.

M.P.’s accident took place in January 2013. Potential entitlement to non-earner benefits begins 6 months post-accident. Northbridge denied M.P.’s entitlement to non-earner benefits on May 21, 2014. M.P. had over two years, between May 2014 and July 2016 when she filed her application with the Tribunal, to obtain the medical evidence necessary to support her claim for non-earner benefits. The Arbitrator found that M.P. had enough time to obtain medical reports before her application was filed and has failed to provide a reasonable explanation of why she did not do so.

The Arbitrator also noted that M.P. also had sufficient time after her application was filed and before she had to attend a funeral in October and/or was hospitalized in December 2016 to obtain medical evidence to support her claim. This is evidenced by the fact that she obtained a report from an occupational therapist in September 2016.

In considering this adjournment request, the Arbitrator considered the balance of the competing interests of the parties. M.P. seeks to obtain an additional assessment to support her case. Northbridge has an interest in a timely resolution of the dispute without ongoing delays to allow M.P. to obtain new assessments and potentially precipitate the need for it to obtain responding assessments of its own and potentially incur additional legal costs.

The Arbitrator found that based on the information M.P.’s right to present her case is outweighed by any additional costs that Northbridge may incur because of additional delay. Moreover, there was no finding that M.P. has intentionally tried to prolong or delay the proceedings. M.P. confirms that she had an assessment booked in October 2016 and had it rebooked for January 2017. She rebooked the January assessment to take place in March. The March assessment had to be cancelled because of her leg surgery.

Since filing her application M.P. has had to attend the funeral of a family member; she fractured her leg and was then hospitalized; she was released and re-admitted for surgery on her leg. The Arbitrator agreed that these are exceptional and uncontemplated circumstances that have caused the delay in this matter moving forward in a timelier fashion. Due to the unusual circumstances of this case, it would be unduly prejudicial to M.P. if an adjournment was not granted for her to obtain the assessment she believes is needed to support her case.

Rule 16.1 of the Tribunal’s Rules of Practice and Procedure states that requests for an adjournment of a hearing must include at least three alternative dates within 30 days of the hearing. The first available date for the hearing proposed by M.P. is June 20, 2017, a month beyond the 30-day time limit. The other dates provided are significantly longer.  M.P.’s adjournment request fails to indicate when her assessment has been rescheduled to or a date by which the report would be provided to Northbridge.

To address the concerns raised by Northbridge and ensure that the matter proceeds to a hearing in a timely manner, the Arbitrator will manage this file until it proceeds to a hearing.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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