S. S. v. Wawanesa Mutual Insurance Company
Tribunal File Number: 16-003931/AABS
Case Name: 16-003931 v Wawanesa Mutual Insurance Company
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits
Between:
S. S.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
HEARING DECISION
Adjudicator: Ian Maedel
Appearances: Olga Kanevsky, Counsel for the Applicant Michael Kennedy, Counsel for the Respondent
Heard in writing on: June 21, 2017
OVERVIEW
1The applicant was injured in an automobile accident on December 18, 2014 and sought benefits from its insurer, Wawanesa Mutual Insurance Company ("Wawanesa") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').
2The applicant submitted an application, dated November 16, 2016, to the Licence Appeal Tribunal – Automobile Accident Benefit Service (“Tribunal”) seeking attendant care benefits, medical benefits, costs of examinations and interest.
3The applicant failed to participate in the dispute resolution process. He failed to attend the case conference scheduled on March 8, 2017. His counsel requested to get off the record and the responded field a motion to dismiss the application as abandoned.
ISSUE TO BE DECIDED
4The following are the issues to be decided:
a. Should applicant’s counsel be removed from the record in this proceeding?
b. Has the applicant abandoned the Application filed with the Licence Appeal Tribunal?
RESULT
5Counsel for the applicant has been removed from the record in this proceeding. Based on the applicant’s non-participation, I find that the applicant has abandoned the Application pursuant to Rule 3.4 of the Licence Appeal Tribunal Rules of Practice and Procedure. The Application dated November 16, 2016 is therefore dismissed.
BACKGROUND
6There were several issues in dispute as listed in the Application, including a Minor Injury Guideline determination, three treatment plans, the cost of a psychological assessment and a claim for interest on overdue claims of benefits.
7A case conference was scheduled for March 8, 2017. The applicant was represented by counsel but did not attend or participate in this proceeding.
8A written hearing date was set for July 4, 2017 as detailed in the Order of Adjudicator C. Lester dated March 10, 2017.
9Following the applicant’s failure to attend the case conference on March 8, 2017, the respondent brought a motion to dismiss the application as abandoned, dated April 12, 2017. A copy of this motion was served on applicant’s counsel via facsimile. Confirmation of the facsimile was filed with the Tribunal.
10On May 4, 2017, applicant’s counsel brought a motion to be removed from the record following multiple failed attempts to contact her client and receive instructions.
11The Tribunal sent the applicant notice of both motions by regular mail. The motions were both scheduled to be heard on June 1, 2017.
12In an Order dated May 30, 2017, Vice Chair T. Hunter advised the applicant that he had until June 15, 2017 to make submissions to the Tribunal as to why the application should not be dismissed as abandoned. A copy of this Order was sent from the Tribunal to the applicant via regular mail.
13On June 1, 2017, both counsel for the applicant and counsel for the respondent attended at the hearing set for both motions before Adjudicator R. Watt. The applicant failed to attend. The hearing was adjourned on consent of both counsel to allow the applicant more time to comply with the Order of Vice Chair T. Hunter, namely to provide written submissions to the Tribunal by June 15, 2017, as to why the matter should not be dismissed as abandoned.
14In an order dated June 19, 2017, Adjudicator R. Watt, set both motions down for a hearing in writing on June 21, 2017.
MOTION TO BE REMOVED AS SOLICITOR OF RECORD
15In correspondence to the Tribunal dated May 4, 2017, Ms. Kanevsky indicated there had been a breakdown in the solicitor client relationship and asked permission of the Tribunal to be removed from the record.
16It is evident from the affidavit filed in support of the motion that Ms. Kanevsky, as applicant counsel, has made repeated attempts to contact her client over a period of months beginning in January 2017 through to May 2017. Clearly she has lost contact with their client and is unable to obtain instructions on how to proceed with this matter.
17I am satisfied that the applicant had notice of his counsel’s intention to get off the record and that there has been a breakdown in the solicitor client relationship, Ms. Kanevsky shall be removed as solicitor of record in this proceeding pursuant to section 25.0.1 of the Statutory Powers and Procedure Act (“SPPA”) which grants the Tribunal the power to control its process and make orders with respect to the procedures and practices that apply to any particular proceedings.
MOTION TO DISMISS THE APPLICATION AS ABANDONED
18The applicant is a “party” as defined in Rule 2.16 of the Licence Appeal Tribunal Rules of Practice and Procedure (“Rules”).
19The applicant has not participated in the Tribunal’s process. The Tribunal sent a Notice of Case Conference to the applicant via regular mail at the address listed on the Application in January 2017. As a “party”, he had an obligation to attend under Rule 14.5 of the Rules. In the event of his non-attendance at the case conference the applicant was required to provide instructions to counsel or obtain permission from the Tribunal to send a representative on his behalf.
20The Notice of Case Conference states in bold type that as required by Rule 14. 6 of the Rules, parties must attend the case conference (my emphasis). Clearly there is an onus on the applicant to attend at the case conference in order to provide instructions to counsel.
21The applicant failed to attend the case conference on March 8, 2017 as required. Nor did he provide instructions to his representative or obtain prior permission from the Tribunal to send a representative on his behalf pursuant to Rule 14.6 (a) and (b) of the Rules.
22Given the applicant’s non-attendance at the case conference as required, the respondent filed a motion to dismiss the application as abandoned. The respondent submits that this application should be dismissed pursuant to section 3.4(d) of the Rules, which states:
The Tribunal may dismiss an appeal without a hearing if: ….
d) The party filing the appeal has abandoned the proceeding.
23Given his status as a “party” under the Rules, should the applicant choose not attend the case conference or otherwise provide instructions to his representative, his application may be dismissed as abandoned. That is precisely what respondent is seeking with regard to this motion.
24Rule 3.5 of the Rules state:
Before dismissing an appeal under this Rule, the Tribunal will:
a) Give the parties notice of its intention to dismiss;
b) Provide the reasons for its intended decision to dismiss; and
c) Inform the parties of their right to make written submissions to the Tribunal within the time limits set out in the notice, which shall be at least 10 days.
25The order of Vice Chair T. Hunter specifies that pursuant to Rule 3.5 the applicant had until June 15, 2017 to provide written submissions to the Tribunal why his appeal should not be abandoned. Upon review of said Order, I conclude that this is valid notice pursuant to Rules 3.4 and 3.5. A copy of this order was sent to the applicant via regular letter mail.
26The Tribunal has not received any written submissions from the applicant following the order of Vice Chair T. Hunter with respect to the motion to abandon.
27Sections 7.1 and 7.2 of the SPPA also speak to abandonment and notice. If a party receives notice of a hearing, in person or in writing, and fails to attend, the hearing may proceed in their absence and no further notice of the proceeding provided.
28The Tribunal provided the applicant with copies of the Notice of Motion Hearing scheduled for June 1, 2017, the Order of Adjudicator R. Watt dated June 19, 2017 and the Notice of Written Hearing scheduled for June 21, 2017 via regular mail to the applicant’s last known address.
29Rule 4.4 of the Rules requires a party to notify the Tribunal promptly of any change in their contact information. At no time has the applicant provided the Tribunal with a change of address or phone number. The Tribunal relied on the applicant’s address as laid out on the face of the Application, as did his counsel, Ms. Kanevsky. All of the correspondence sent by the Tribunal and Ms. Kanevsky’s office were addressed to this same address. The applicant did not reply to the documents sent by the Tribunal nor to the correspondence provided by Ms. Kanevsky’s office.
30According to Rule 6.2 of the Rules, service by mail is deemed effective on the fifth day after the post mark date. I am satisfied that the Tribunal, by sending the Notice of Motion, the Order of Vice Chair T. Hunter, the Order of Adjudicator R. Watt, and the notice of written hearing to the applicant’s address as listed on the Application, advised the applicant of the motion hearing and the hearing in writing and these documents were deemed effectively served on the fifth day after being served by mail.
31These documents are in addition to the repeated correspondence sent to the applicant by his counsel, Ms. Kanevsky, directing the applicant to contact her office and warning him of potential dismissal and the limitation period with regard to the application.
32Given the documents served upon the applicant, I am satisfied that he was provided notice of the hearing dates and advised of the potential dismissal of his application. The notices provided by the Tribunal also satisfy the provisions of Rule 3.4 and Rule 3.5 and sections 7.1 and 7.2 of the SPPA.
33He has also failed to reply to the repeated correspondence provided by his counsel. He was sent correspondence from the Tribunal warning of the impending abandonment of the Application and his right to provide written submissions against potential dismissal. The applicant failed to reply. From this inaction and lack of reply, I can only conclude that the applicant has abandon the Application before the Tribunal.
34Accordingly, the respondent’s motion is granted. This Application shall be dismissed as abandoned pursuant to section 3.4(d) of the Rules.
Released: September 14, 2017
_____________________
Ian Maedel, Adjudicator