Highlights of Noteworthy Decisions

Decision 179 23 I
G. Dee (FT)
  • Notice of hearing (right to sue) (statutory accident benefits)
  • Procedure (interim decision)
  • Procedure (decision) (parties of record)

The plaintiff commenced a civil action for a motor vehicle accident, including a third party claim. The respondent sought a declaration that the plaintiff's right of action be taken away. This decision provided procedural directions in this right to sue application.

Individuals who are injured in motor vehicle accidents may make a claim against an insurer for statutory accident benefits under section 268 of the Insurance Act. The insurer may therefore have an interest in the results of a right to sue application, and have the right to be a party. The insurer may also have standing to initiate a section 31 proceeding on its own, if it chooses to do so. The Tribunal routinely seeks information from plaintiffs involved in right to sue applications about whether a claim for statutory accident benefits has been made, and, if so, to whom. This was not provided in this case.
It was noted that a section 31 proceeding is not a separate legal proceeding, but is similar to a motion brought within a civil action. A Tribunal order in a section 31 proceeding may preclude/restrict the right of a plaintiff to bring a civil action, and, unless set aside on judicial review, it constitutes a binding decision. Therefore, counsel who are on the record for a party in a civil proceeding, are also considered to be on the record for that same party in any section 31 application made to the Tribunal with respect to the civil proceeding. This interim decision confirmed the plaintiff's lawyers as counsel of record in this section 31 proceeding. In addition, Section 5.1-3.1 of the LSO's Rules of Professional Conduct set out a lawyer's obligations concerning discovery. This decision found that the firm was expected to assist the Tribunal in discovering the information regarding the identity of the plaintiff's statutory accident benefits provider, in order to proceed in a timely manner.