Highlights of Noteworthy Decisions

Decision 270 22 I
19/05/2022
L. Petrykowski
  • Notice of hearing (right to sue) (statutory accident benefits)
  • Right to sue (statutory accident benefits)

The preliminary issue to be decided was whether the Applicant should advise the Tribunal if he made an application for statutory accident benefits (SABs), and if so, whether notice of the application should be provided to the SABs insurer.

The Vice-Chair noted that the Tribunal has developed a consistent practice to make enquiries from parties in right to sue applications, based upon its statutory authority to determine its "own practice and procedure in relation to applications". This includes requesting confirmation of whether a SABs claim has been made, so as to determine whether additional parties should be provided notice. It was noted that these enquiries were appropriately made in this case. The Applicant's representative declined to provide a response to the Tribunal, which had prevented it from providing appropriate notice to the SABs insurer as applicable.
The Vice-Chair noted that one of the tenants of procedural fairness that apply to decision-making bodies is to ensure that parties have a meaningful opportunity to participate in proceedings where their interests may be affected by the outcome of legal proceedings. This means that the Tribunal must give sufficient notice to interested parties in its proceedings, including right to sue applications. The Vice-Chair found that a SABs insurer has sufficient pecuniary interest to be granted standing in such Tribunal proceedings, and can be adversely affected by the findings.
It was noted that the Tribunal can only fulfill this duty to provide notice to interested parties if it makes initial enquiries from the parties about whether a SABs claim has been initiated, and if the parties provide answers. The Vice-Chair noted that this is a well-established process at the Tribunal and is invariably followed by Tribunal staff in processing right to sue applications at the pre-hearing stage. As such, it was determined that it was well within the powers of subsection 131(2) of the WSIA for the Tribunal to seek out such information as it determines its own practice and procedures. The Vice-Chair noted that the provision of such information does not involve obtaining the SABs file or any sensitive/medical evidence, rather only a negative or affirmative response along with the contact information for the applicable SABs insurer. In addition, the Vice-Chair pointed to further institutional reasons with respect to the Tribunal mandating such a process, including for the purpose of conserving its limited resources, and to avoid a potential duplication of proceedings which can lead to inconsistent results.
In conclusion, the Vice-Chair found that the Tribunal has the clear authority to request that parties provide information about whether a SABs claim has been made by any party. The Tribunal then has the obligation to provide notice of a right to sue application to the applicable SABs insurer. The Vice-Chair determined that there was no reasonable basis in the present case to depart from the Tribunal's longstanding practice in this regard. The Applicant was ordered to respond to the Tribunal regarding whether he had made a SABs claim with respect to his motor vehicle accident of April 3, 2018, and to provide the contact information for his SABs insurer if applicable. The Tribunal would then be obligated to provide notice of the application to the SABs insurer.