Licence Appeal Tribunal
Tribunal File Number: 17-002272/AABS
Case Name: 17-002272 v Royal & SunAlliance Insurance (RSA)
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:
J. K.
Applicant
and
Royal & SunAlliance Insurance (RSA)
Respondent
DECISION ON A MOTION
Adjudicator: Blaine Baker.
Appearances:
For the Applicant: Neither the applicant nor his counsel attended.
For the Respondent: Kim Thomas, claims representative for the respondent. Sean Chambers, counsel for the respondent.
Interpreter: Danuta Zadorecki (Polish/English translator).
Held by Teleconference: July 7, 2017
BACKGROUND
1J. K. (the applicant) was injured in an automobile accident on December 26, 2015 and sought benefits before the Licence Appeal Tribunal (the “Tribunal”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule'').
2An initial case conference was held by teleconference on June 8, 2017 at 9:00 am. The applicant’s counsel, Ashlin Brar, was present at that case conference, but the applicant was not present. The applicant’s counsel reported that the applicant’s spouse would have to translate from English to Polish for him, but that she would not be available to do so until later that afternoon.
3There was no mention of a need for translation in any of the material filed with the Tribunal by the applicant nor in the initial AABS application filed by the applicant (where a question about that need for a translator is expressly asked). An order reconvening that case conference on July 7, 2017 at 11:00 am was then made on the basis of the applicant’s absence, the need for translation, and the desirability of setting up that translation with a neutral professional.
4The June 9, 2017 case conference report for the June 8, 2017 case conference repeated, in written form, adjudicator Blaine Baker’s oral caution to the applicant’s counsel in the case conference that “the applicant has been put on notice, through his counsel, that his failure to appear at that July 7, 2017 resumption may lead to a successful motion for dismissal of this application.”
5When neither the applicant nor his counsel came into the resumed July 7, 2017 case teleconference, I directed the Tribunal’s case management officer to telephone the applicant counsel’s law firm no fewer than three times between 11:00 am and 11:35 am, and she was told each time that the applicant’s lawyer was not in her office.
6The respondent’s counsel requested a dismissal of the application and made oral submissions.
7The importance of the applicant’s attendance at the resumed case conference was emphasized to the applicant’s counsel at the conclusion of the initial case conference, as were the potential consequences if they did not attend the resumption scheduled for July 7, 2017 or the hearing that was scheduled for November 14, 2017. Those factors were re-emphasized in the formal written material which came out of that case conference.
RESULT AND ORDER
8Rule 3.4 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) set out the grounds for dismissal of an application for benefits under the Schedule without a hearing. The Tribunal may dismiss an application without a hearing where the applicant has abandoned the proceeding. This applicant’s failure to attend two case conferences one month apart, together with his counsel’s failure to attend one of them, without notice or explanation, can reasonably be construed as abandonment.
9Rule 15.2 provides that motions may be heard at case conferences so long as the Tribunal receives a notice of motion ten days in advance, “or in accordance any other schedule as may be interpreted by the Tribunal and serves notice … on all parties”. At the June 8, 2017 case conference and at the case conference that followed it, the parties were notified of the potential consequences of further failures to appear, which is more than ten days in advance of the July 7, 2017 date when the motion for dismissal was heard and decided.
10The resumed case conference was delayed forty minutes with the adjudicator, the respondent, and the respondent’s counsel on the telephone line to give the applicant and his counsel an extended opportunity to participate in that case conference.
11On this basis, I dismiss the appeal.
Released: September 22, 2017
Blaine Baker, Adjudicator