(Disponible en français)
The Licence Appeal Tribunal ("Tribunal") has developed the following Practice Direction for document exchange in Automobile Accident Benefits Service ("AABS") disputes. This Practice Direction provides general information only and is intended to supplement Rule 9 of the Licence Appeal Tribunal Rules ("Rules"). Statutes, regulations, and the Rules and orders of the Tribunal will always take precedence over any contrary information in this Practice Direction.
The Tribunal handles thousands of appeals annually, and it has a mandate to ensure the efficient, proportional, and timely resolution of these disputes. Proportional and timely document exchange plays a key role in helping the Tribunal to meet its mandate. The purpose of disclosure and document exchange at the Tribunal is to allow the parties and the Tribunal to:
The requirement for document exchange between the parties begins as soon as an application is filed with the Tribunal. Parties are encouraged to disclose and exchange documents that are relevant to the issues in dispute as early in the process as possible.
In most AABS disputes, an insured person will be required to provide the following documents to the insurer:
If an insured person's employment status or earnings are in dispute, for example in the case of an income replacement benefit, the insured person will also generally be required to provide the insurer with their personal income tax records.
An insurer is generally required to provide the insured person with a copy of the accident benefits file, including the adjuster's log notes with particularized redactions for privilege and reserves.
Rule 20.4 requires the parties to file a case conference summary at least 10 days before a scheduled case conference. Rule 20.4 sets out the requirement that the parties include in their case conference summary:
At the case conference, the Tribunal will help the parties explore whether they can resolve the entire dispute without the need for a hearing, or if any of the issues in dispute can be settled. This is an important purpose of the case conference. The parties are expected to have exchanged all documents and things required for settlement discussions before the case conference, including proposals for settlement. The parties are expected to come to the case conference prepared to engage in settlement discussions.
If the dispute is not settled at the case conference, the Tribunal will make orders for hearing management. This includes setting the format for the hearing, considering whether any production orders are required, and establishing deadlines for the exchange of documents and witness lists.
The Tribunal will set the deadline for filing and serving hearing briefs for written hearings at the case conference. The deadline for electronic and in-person hearing briefs is set out in Rule 9.4.
At the case conference the Tribunal will set deadlines for the exchange of all relevant documents and things that a party intends to rely on as evidence at a hearing. The deadlines set by the Tribunal are anchored to the case conference date and not to the date of the Case Conference Report and Order. Exchange between the parties will generally be completed within 90 days of the case conference.
If not otherwise ordered by the Tribunal, document exchange between the parties must be completed no later than 45 days before the hearing.
A party may request a production order from the Tribunal pursuant to Rule 9.2. Before requesting a production order, the party must make reasonable efforts to obtain the document or thing without a production order.
A party may make requests for production orders in the case conference summary, or orally at the case conference. A party may only bring a production request by way of a notice of motion if the circumstances giving rise to the request arose after the case conference.
Rule 9.2 provides that the Tribunal will not make an order for the production of any document or thing that is not relevant to the proceeding, or that is unduly repetitious. Relevance is a key consideration when the Tribunal is deciding whether to issue a production order. The onus is on the requesting party to establish the relevance of the requested document or thing.
Rule 9.2 also addresses non-party production orders. In addition to establishing the relevance of the requested document or thing, the requesting party has the onus to demonstrate reasonable efforts were made to obtain the document or thing without a production order. If the Tribunal is considering making a non-party production order, the non-party will be given an opportunity to make submissions.
Only relevant documents and things that a party intends to rely on at a hearing should be filed in a hearing brief with the Tribunal. Parties must not file voluminous records, such as texts, emails, social media postings, adjuster's log notes, and clinical notes and records, in their hearing briefs. Only relevant and necessary excerpts from these records are to be included in the hearing brief.
For oral hearings, parties must file and serve their hearing briefs with the Tribunal in accordance with the 21-day deadline set out in Rule 9.4. Each party must file with the Tribunal and serve on the other party:
Rule 9.4 provides that in the case of non-compliance with the 21-day deadline, the Tribunal will consider late-filed evidence as a preliminary issue at the hearing.
This means the Tribunal will not consider notices of motion or requests for summons relating to evidence or witness lists that are late-filed.
At the hearing, the Tribunal will determine if the late-filed evidence can be used at the hearing, if any new witness(es) may testify at the hearing, and whether the matter requires any other order from the Tribunal. The Tribunal may consider any relevant factor, including the factors in Rule 9.3 when making its determination.