Input into the Licence Appeal Tribunal’s Common Rules of Practice and Procedure

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Submitted to: Licence Appeal Tribunal
Date: May 23, 2023

Introduction

The Ontario Bar Association (“OBA”) appreciates the opportunity to provide this proactive submission to the Licence Appeal Tribunal (“Tribunal”) on Rules 8, 9, 10, 14, 16, 18, 20 and 24 of the Common Rules of Practice & Procedure (“Rule” or “Rules”).

The OBA is the largest and most diverse volunteer lawyer association in Ontario, with over 16,000 members who practice on the frontlines of the justice system, providing services to individuals and businesses in virtually every area of law in every part of the province. Each year, through the work of our 40 practice sections, the OBA provides advice to assist legislators and other key decision-makers in the interests of both the profession and the public.

This submission was prepared by the Insurance Law Section of the OBA. The OBA’s Insurance Law Section consists of over 200 lawyers practicing in Ontario in the areas of insurance and personal injury law. The Section’s membership includes lawyers who represent persons injured in motor vehicle accidents, and those who represent defendants and automobile insurers. Much of their work involves claims before the Tribunal for Statutory Accident Benefits arising out of motor vehicle accidents, which are governed by the Insurance Act, and its applicable Regulations, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABS”). We have also prepared this submission in consultation with the Administrative Law Section who represent both regulators as well as registrants that come before the Tribunal.

Comments & Recommendations

Rule 8

The following is the proposed wording of Rule 8:
 

Under Rule 8.1, the requirement of “specifically identifying” a person could be problematic because the name of this person is not always known. This is particularly the case where a “complete file” is being requested. A party can “write” to an institution (government, medical clinic, facility, etc) for the “name” of the person to place on a summons, but the institution is often reluctant to provide such a name. Accordingly, the Rule should be loosened to allow a requesting party to simply list a “records librarian” or “records custodian” to attend the hearing and produce the file (preferably in a digital format). Obviously, if a specific person (such as an insurance adjuster or a expert physician) is being compelled to attend via summons, then it is entirely reasonable that this person be specifically named.

The wording of Rule 8.2 could be problematic because it may result in pre-hearing litigation that is not necessary. Firstly, the threshold for issuance of summonses should remain low. The Adjudicator is ultimately the trier of fact at the hearing and should have a high level of discretion to allow or exclude evidence once the summonsed witness presents the file at the hearing. This includes determining whether or not evidence is admissible. The OBA agrees that the low test of “relevant to the issues in dispute” should remain the way that it is but finds that the addition of an admissibility threshold to be inappropriate at this early stage, particularly since that determination will likely be made by administrative staff, rather than the hearing adjudicator. By limiting the criteria, the hearing Adjudicator maintains their gatekeeping function at the hearing itself.

The reason for a summons relating to documents is because one party has not produced the documents, but the other party believes that the documents should be produced for a full and fair hearing. Ultimately, the party requesting the documents is at a distinct disadvantage because they have never seen the documents. A party requesting the documents needs to state the basis for the request, but this should not be overly onerous because they do not know what is contained in the “complete file”.

Accordingly, the requirement under proposed Rule 8.2 (that the requesting party has to serve a copy of the ‘request for summons’ on the other parties) could be problematic as it may result in litigation over the summons before it is appropriate to do so.

Previously, there were “two types” of summonses, one for documents, one for witnesses. Presently there is only one form of summons that covers both scenarios.

Ordinarily, a summons is issued by the Court or Tribunal hearing the matter. The institution or person is served with the summons and attends (virtually) the hearing with a complete copy of the records. It is then up to responding party to take a position on whether the summons ought to be quashed, or not. That process should take place at the Hearing. That process should not take place in advance of the hearing. The wording of proposed Rule 8.2 that the parties “may make submissions only when invited to do so by the Tribunal” may result in further, unnecessary pre-hearing litigation, when the issue of quashing summonses and the appropriateness of summonses really should be reserved for the Hearing Adjudicator to decide. This would be consistent with the ordinary practices of the Superior Court of Justice where summonses are submitted, issued, served on the other lawyer, and served on the summons recipient and then issues arising from the same are dealt with at the hearing or trial.

With respect to the proposed wording of proposed Rule 8.2 (filing a request for summons), the OBA agrees that filing a request at least 21 calendar days before a hearing is reasonable.

With respect to Rule 8.3, the OBA would point out that there is a distinct difference between merely “listing” someone on a witness list and issuing a summons for that person’s (or that institution’s) appearance.

The OBA agrees that if a party wishes to summon someone (or a representative of an institution to provide a file or records) then it makes sense to specifically list that person on the witness list and then to issue a summons.

However, the mere fact that someone is listed on a witness list is not enough to secure their attendance. In most cases, a summons is still necessary, and the summons should be granted on that basis. Accordingly, whether or not a person is listed on a witness list should not be determinative in deciding to issue a summons. The bar for issuing a summons is, and should remain, low – the test is whether the person will be able to produce documents relevant to the issues in dispute. It is then for the trier of fact to determine whether the file gets produced or whether the witness can sit and give evidence. This is a judicial function; it is not an administrative function and should therefore rest with the ultimate trier of fact.

The OBA agrees with the contents of Rule 8.4 which will ensure consistency with the rules that presently exist relating to witnesses summoned to appear in Superior Court.

Rule 9

The proposed wording of Rule 9 is as follows:

The OBA is generally in agreement with the proposed wording of Rule 9.2.

The OBA submits that it is reasonable to require a “requesting party” (for example, an insurer or insured) to make requests to the other side, or their lawyer, for documents before seeking a production order. This is easily accomplished by way of sending an e-mail or a letter requesting production of the document.

In order to successfully obtain a production order, the moving party would have to file (as part of its motion material) proof that it sent the requests, which is reasonable and proportionate. If the third party has submitted responses to those requests, then those responses should also be filed in the moving party’s motion materials for the sake of completeness.
 

The OBA generally agrees with the proposed wording of Rule 9.2.1. The OBA submits that the wording “or that is unduly repetitious” should be removed from the language at the very end of the rule as it is not necessary.
 

The OBA is in full agreement with the language of proposed Rule 9.2.2. Further, the request for “reasonable efforts to obtain the documents” by sending request letters, is reasonable.
 

The OBA agrees with the proposed language of Rule 9.3 which seeks to establish a balance between hearing fairness and failure to produce documents. Specifically, having a “show cause” requirement in the Rule allows a party who breached a production order to “show cause” as to “why” the document should still be considered, notwithstanding the fact that they failed to produce the document in accordance with a timeline or order.

Similarly, if a party fails to exchange a witness list but then later attempts to add a witness, they will have to “show cause” as to why the witness ought to be allowed to testify. This provides the Tribunal with residual discretion to still allow a document into evidence if it was not served in time, but it puts the onus on the offending party to make an argument as to why it should be admitted. This is proper.

The Tribunal’s “list of relevant factors” is comprehensive and reasonable.

 

The OBA submits that this rule should be strengthened. As stated in our original submission of February 17, 2023, case conferences are quite correctly functioning as significant events where hearings are set and where production issues are sorted out.

For instance, case conference adjudicators are routinely (and helpfully) making production orders on the spot at case conferences and this is significantly enhancing efficiency. Case conferences are important events not only because they allow for the scheduling of a hearing, but they are also an important opportunity to discuss resolution of the case. Accordingly, before proceeding to a case conference, both sides need to put their best foot forward by ensuring that productions and production requests are in order before they file their “Case Conference Summary Forms.

Accordingly, the OBA recommends that the following language be considered with respect to this rule to strengthen the Rule:
 

The proposed changes would strengthen, codify and reinforce the importance of the case conference as a central event in the AABS process and set the reasonable expectations of the parties in accordance with the Tribunal’s goals of efficient and transparent adjudication of accident benefits disputes.

Scheduling Note Re: Case Conferences

The OBA suggests that the range of case conference dates and the range of hearing dates given by the scheduling team be broadened which will allow the parties to discuss and select an available and mutually convenient date and time; that method would also allow dates/times that are fully booked to be removed from the list of available/dates times on that online scheduling calendar. The scheduling unit would retain the ability to unilaterally schedule a date in cases where the parties fail to participate in that process within a reasonable period of time after being given notice by the scheduling unit.

The OBA fully acknowledges the substantive and significant changes that the Tribunal has proposed below as it relates to establishing a framework relating to adjournments and changing the dates of hearings.
 

The OBA agrees with the global wording of the Rule above but submits that the rule relating to case conferences and productions ought to be strengthened similar to the recommendations made above relating to draft Rule 9.4.1.

Also, there may be ambiguity and confusion between the “10 day” rule in 9.4.2 and the 45 day rule in 9.5.2. Situations where a party attempts to enter new evidence, for example, 11 days before the hearing, need to be avoided.

The OBA specifically agrees with the “45 day rule” (as contained in draft Rule 9.5.2.) prior to hearings, because this enables the other side time to receive, review and act upon any “new” documents (or reports).

The OBA suggests that a further paragraph be added to Rule 9.5.2. stating that “if a party attempts to disclose a document inside of the 45 day deadline, that party will only be permitted to do so with the permission of the Tribunal. The Tribunal may want to set out some kind of procedure or pathway as to how such permission might be obtained.

This will build in a “show cause” provision, allowing the offending party to put forward an argument as to “why” the late document or report should still be admitted.

For example, a medical practitioner may not have completed a report, despite best efforts, but the report is still relevant for the hearing and was requested by the party as soon as possible. Another example might be that a third party is late in producing records, but the records are still relevant.

Alternatively, the Tribunal may wish to draft a “failure to comply with the 45 day deadline”, as it has done under Rule 9.5.4 with respect to “Failure to comply with the 21 day deadline”.

The OBA agrees with the form and content of draft rules 9.5.3 and 9.5.4.

Proposed wording for Rule 9.5.5:

 

The OBA agrees with the proposed wording and does not suggest any changes.

Rule 10

The OBA generally agrees with the proposed draft with some comments as follows:

The OBA submits that an additional “paragraph” be added to Rule 10.2 requiring the party presenting a report to also provide an up to date “Curriculum Vitae” of the expert they are presenting. This allows the other side to properly review and consider the expert and it enables the other side to (if necessary) challenge the expert’s qualifications. This is almost always required in the context of a hearing at the Tribunal or in Court.

Oftentimes, the requirement that an expert list their credentials in the body of the report is not always sufficient to consider whether or not they are a properly qualified expert. It is routine and normal in personal injury cases for any expert to present their CV to the Court at the qualification stage and CVs are routinely exchanged as between counsel well before the hearing.

Rule 10.2(e) may not be necessary. The proposed wording may have the unintended effect of creating extra, and unnecessary, work for the parties. It should be sufficient that the party presenting the report has served the report and that the report itself (as they normally do) sets out a summary and presents findings, opinions and conclusions. Whether or not something is admitted or in dispute is a matter for the trier of fact.

With respect to Rule 10.3, consideration should be given to requiring parties to identify their experts even earlier, for example, at the case conference stage, but by no later than 45 calendar days prior to the hearing.

If a party has a report in its possession as of the date that an application is filed, the report ought to be produced immediately and certainly by no later than the case conference. If, however, a party is “obtaining” a report (e.g.: the applicant must attend a medical examination and then wait for the doctor to write a report) then it is reasonable that the report be produced later.

With respect to the proposed wording of Rule 10.4, the OBA agrees that 21 calendar days prior to a hearing is the appropriate amount of time required if a party is attempting to challenge the qualifications of a proposed expert.

The Rule should be strengthened with an additional paragraph stating, “If a party does not provide the notice referred to in paragraph (a) above, within the time prescribed, then that party is prohibited from arising any challenge to the expert’s qualifications or ability to give evidence”, or words to that effect. A situation should be avoided where a party, at the last minute, attempts to challenge qualifications when they did not comply with the Rule relating to this.

Rule 14

Proposed wording of Rule 14:

The OBA submits that the proposed wording of Rule 14 is consistent with the other changes proposed and the intended effect of increasing efficiency and transparency.

However, with respect to Rule 14.2, the “addition” of sometimes major issues to case conferences is an issue raised by some members. The Tribunal may wish to address the “addition” of major, substantive issues at, or immediately prior to, a case conference. This can be a problematic practice because it changes the scope of the application, productions, witnesses, documents and ultimately the format and length of a hearing.

An example is where a dispute is filed over medical benefits. Prior to the case conference, a major issue like income replacement benefits or catastrophic impairment or attendant care is added, or there is an attempt made to add it. This can have the effect of changing the entire landscape of the Application in ways that were not expected when the original application was filed. It also puts the responding party at a disadvantage. For example, the production requests alone associated with a medical benefits claim is entirely different than it would be for a more significant claim. By this point in time, the parties have already spent time and money preparing for what is in dispute, not what “might” be in dispute.

Accordingly, the Tribunal may wish to tighten, clarify, or specify the circumstances under which a party may “add issues” to an existing dispute.

Alternatively, the Tribunal may wish to adopt a “show cause” or a motion hearing requirement, compelling the party seeking the addition to make an argument as to why the issue should be added and the responding party should be given a full and fair chance to respond and oppose (if necessary) the addition or to seek terms including, but not limited to, the application being withdrawn and reconstituted.

Rule 16

The OBA agrees with the changes proposed to Rule 16 relating to adjournments. The proposed wording builds in a process, providing certainty and fairness to litigants who require an adjournment, by setting out a specific framework and by including a list of relevant factors or considerations.

However, the OBA continues to hold the view that greater flexibility be provided to the parties when booking a hearing at first instance. For the most part, lawyers can mutually and cooperatively work together to fix hearing dates that are agreeable based on evaluating their own work commitments, personal commitments, availability of witnesses and by ensuring that they are not double booked at other hearings or proceedings. If hearings can be scheduled with a higher level of flexibility, the rate of requests for adjournments may drop.

Rule 18

The Tribunal may wish to consider specifically (or more broadly) defining “finally disposes of an appeal”. For example, if there is a preliminary issue occurring within the broader context of an application, and that preliminary issue decision finally disposes of that “particular issue” (e.g.: a limitation period defence, etc.), then the Rule may want to account for the fact that a party can (or cannot) file for reconsideration with respect to a legal issue or defence that has been finally disposed of by way of a decision, in a context where the rest of the application still exists and is ongoing and will make its way to a hearing.

Clarify that 21 days means “21 calendar (straight) days” and not 21 business days. Specify 10 double spaced pages and use minimum 12 point font. This is a similar requirement to written hearing submissions as well.

The OBA agrees with the proposed changes and clarifications to Rule 18, particularly as it relates to the requirement that the moving party (a) use a form, (b) specifically identify the applicable 18.2 criteria, (c) that the party specifically advise as to whether an alternate form of appeal is being considered (e.g.: judicial review)

The OBA has concerns that a reconsideration (which is effectively a form of appeal) can be heard by the “same member” who issued the initial decision. Ordinarily, in a judicial or quasijudicial context, a different adjudicator will hear a form of appeal. The OBA submits that consideration ought to be given to modifying the rule such that a different adjudicator must hear a reconsideration request with a fresh set of eyes.

Rule 18.3 should be more specific and it should set out that the Tribunal shall schedule a timetable for the responding party to make submissions.

The OBA seeks clarification with respect to Rule 18.5, noting that this is a “new” rule. The intended effect of Rule 18.5 is unclear. One of the core principles of the common law system and the rule of law is that decisions rendered by a court or administrative body may be appealed by a party in accordance with the applicable appeal procedure, at the request of one of the parties. Ordinary appeal procedures do not contemplate a court or Tribunal revisiting a decision on its own initiative. One of the parties to the action has to make the request through the statutory appeal mechanism.

Accordingly, the OBA would like to better understand the impetus behind this rule before it makes comment.

Rule 20

Proposed wording of Rule 20: