The Applicant was involved in a motor vehicle accident and sought benefits pursuant to the Statutory Accident Benefits Schedule (SABS) which were denied by Aviva Insurance Company (the Respondent) as not being reasonable or necessary.
The Applicant stated that she continued to experience pain after the accident and wanted to undergo further chronic pain assessments to identify the cause of her pain.
However, the Respondent submitted that the Applicant had undergone numerous chronic pain assessment and because many years have passed since the accident, any accident-related injuries resolved. The Respondent further submitted that the Applicant’s pain had been assessed numerous times in the past so there was no need for a duplication of services.
While the Respondent did approve two treatment plans, it did not pay the full amount because of a discrepancy regarding the amount of time actually spent in treatment. The Applicant submitted that someone tampered with the sign in sheet which indicated the sessions were 30 minutes long as opposed to an hour, as claimed by the Applicant. To support her theory, the Applicant sought to introduce two new items of evidence:
- A letter from the Physiotherapy service provider and;
- A sign-in sheet
The Respondent made a sur-reply that the Applicant’s reply should be struck because this new evidence was not previously disclosed.
Adjudicator Harry Adamidis allowed the Respondent to make a sur-reply since this evidence was not previously known to the Respondent.
Using his discretion under the LAT’s Common Rules of Practice & Procedure, Adjudicator Adamidis excluded the two items of new evidence because the Applicant did not meet her burden of proving, on a balance of probabilities, that she received the treatment indicated on the invoices.
Adjudicator Adamidis focused on that fact that the Applicant had offered no reasons why the new disclosure was late or why it should be accepted into evidence.
This decision reminds parties that procedural fairness demands an element of finality in the adjudicative process. Unanticipated submissions may cause delay in a process that was designed to be efficient. While the sur-reply submissions were accepted here, because the Applicant introduced new evidence that was critical to the determination of the issues, a request for sur-reply will always be considered in the context of each case, and the Tribunal plays a gate-keeping role when deciding to permit sur-reply submissions.
Selina Ferenac is an articling students at the firm and the author of this blog. If you have a question about this decision, please contact Selina or the lawyer on the file, Yann Grand-Clement.
