In Spence v. Aviva General Insurance, 2023 ONLAT 21-006356/AABS, the applicant was involved in an automobile accident on January 13, 2019 and sought benefits from Aviva General Insurance (“Aviva”) pursuant to the Statutory Accident Benefits Schedule as a result of injuries sustained.
Before addressing the issues in dispute, the LAT heard the respondent’s motion to strike the applicant’s reply submissions. The case conference report and order dated April 6, 2022, set forth the filing requirements for the exchange of written submissions and evidence between the parties, including applicant replies to respondent submissions. The respondent brought a motion asking that the new evidence and arguments raised in the applicant’s reply submissions be struck from the evidentiary record.
Adjudicator Janet Rowsell partially granted the respondent’s request.
There is a well-settled law against “case splitting” – a legal rule against any attempt by a party to add further evidence or argument after the other party’s defence is complete. This rule reflects the court’s concerns of unfair surprise, prejudice, and confusion. An applicant may only include new evidence in its reply if it is necessary to rebut some new evidence which the applicant has had no opportunity to deal with and which the applicant could not reasonably have anticipated.
Adjudicator Rowsell pointed to the Tribunal’s decision in A.J. v. Aviva General Insurance, 2020 CanLII 72500 (ON LAT) which confirmed that reply submissions are not an opportunity for a party to raise issues that should have been raised in its initial submissions or to reformulate its argument. The purpose of the reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions.
In the case at hand, the respondent submitted that it prepared its responding submissions based on the applicant’s submissions, which were prepared by a paralegal employed by the applicant’s representative. The applicant argued that the paralegal responsible for the submissions lacked experience and was unable to provide effective representation on behalf of the applicant. In response, the respondent argued that the disparagement of a duly appointed representative of the applicant, who remained on the record at the time of the motion to strike the pleading, is not an effective defence and should not be accepted by the Tribunal as a justification for case splitting.
Adjudicator Rowsell reiterated that the right of reply is a limited one. The tribunal held that the combination of the reply being used to make new arguments and putting forth new evidence were grounds to strike portions of the reply submissions.
This decision from the LAT reinforces the well-settled principle that parties are expected to make the entirety of their cases in their main submissions. Adjudicator Rowsell takes the opportunity to clarify what constitutes a proper reply and expresses the court’s objective to ensure that each party has equal opportunity to hear and respond to the full submissions of the other.