On December 10, 2018, Andrew McKague, on behalf of Allstate responded to a motion before the License and Appeal Tribunal (LAT). The Claimant moved to have new documents admitted as evidence at the LAT hearing, which was to start that day; the documents themselves were first provided on December 3, 2018 along with the Notice of Motion. Allstate opposed the relief sought.
The Claimant submitted that without the additional documentation – an OCF-3, clinical notes and records from a family doctor, a letter from an employer, a letter from his recreational hockey league, and a statement from the Claimant himself – he would not only be prejudiced, but would be unable to make his case at all. The documents in question were “crucial” to establishing entitlement to non-earner benefits which was an issue in dispute at the hearing.
Allstate argued that the documents were overdue according to an earlier Order of the tribunal which mandated productions be exchanged by November 1, 2018. Allstate argued that admission of the documents would also contravene Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”), which requires documents be exchanged at least ten days before the hearing. Additionally, Allstate took the position that, for various reasons, each of the documents at issue lacked relevance, reliability, or probative value.
It was not the Respondent’s technical arguments that ultimately won the day. Vice Chair Trojek discussed the Tribunal’s “customary approach” noting “The Tribunal’s Rules shoulder be liberally interpreted. Orders can and should be varied to admit relevant evidence”. Despite this, the Vice Chair accepted Allstate’s argument that the documents themselves lacked evidentiary value. She decided that admission of the documents would result in “unnecessary delay, cost, and potential prejudice to the respondent”, which could not be redeemed or outweighed by the little, if any, probative value contained therein.
The implications of this decision have the potential to be far-reaching. It leaves the door open for the LAT to continue to deviate from its own Orders and Rules, a tendency that by now is well-established. However, the decision also sets out an important set of parameters, seemingly for the first time, according to which otherwise ‘late’ productions will be assessed. When documents proffered for late submission offer little in the way of probative value and threaten to prejudice the responding party, the responding party now stands a fighting chance to keep those documents out of the hearing. This information is particularly useful to insurers, who are often faced with late service of the Claimant’s productions before a hearing.