Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3

In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260

1-800-255-2214

TTY: 416-916-0548

1-844-403-5906

Fax: 416-325-1060

1-844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2

Tél. : 416 314-4260

1 800 255-2214

ATS : 416 916-0548

1 844 403-5906

Téléc. : 416 325-1060

1 844 618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

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:

and

Applicant

Respondent

ADJUDICATOR: Ruth Gottfried REPRESENTATIVES:

For the Applicant: Philip Kai Kwong Yeung

For the Respondent: Sharla Bandoquillo

1The applicant was injured in an automobile accident on July 17, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The applicant filed an Application under the Insurance Act to the Licence Appeal Tribunal (the "Tribunal"). The parties participated in a case conference on July 6, 2016. As they were unable to resolve the issues in dispute, a hybrid hearing was scheduled for September 23, 2016.

3The respondent raised a preliminary issue prior to July 6th case conference, and a motion on that issue was heard in writing on August 11, 2016. The decision, released on September 13, 2016, dismissed the motion and ordered that the matter proceed to the hearing as set out above.

4On September 9, 2016, the applicant requested an adjournment of the September 23, 2016 hearing, on consent. A new hearing date was set for November 2, 2016.

5On October 25, 2016, the respondent requested an adjournment, as it had only received the applicant's submissions that morning and was left with no time to make its own submissions.

6A new hearing date was scheduled for January 17, 2017.

7On January 13, 2017, only one clear business day before the scheduled hearing date, the Tribunal received another request from the applicant's representative for an adjournment, as the applicant could not be reached. After checking alternate contacts, the representative discovered that the applicant had gone to China for a family emergency. The Tribunal was advised the applicant would be returning on January 19, 2017.

8On January 16, 2017, the day before the scheduled hearing, the Tribunal received a Declaration of Representative ("DOR") appointing Ms. Jing Wang, paralegal, as the applicant's representative. Ms. Wang is in the same office as Philip Kai Kwong Yeung ("Mr. Yeung"), the applicant's original and apparently current representative. Along with the DOR, the applicant requested an adjournment. The hearing was adjourned to February 7, 2017 beginning at 1:00 p.m. (a date and time requested by the applicant).

9On January 25, 2017, the Tribunal sent a Notice of Hearing ("Notice") to the applicant by regular mail, to the applicant's representative by fax and to the respondent and its counsel by email. The Notice included the date and time of the hearing, along with the phone number and code needed to participate in the teleconference.

TIMELINE OF EVENTS AT THE HEARING OF FEBRUARY 7, 2017

10At 1:00 p.m. on February 7, 2017, the respondent and its counsel, a court reporter, a Cantonese interpreter (as requested by the applicant) and I were in attendance. Neither the applicant nor her representative signed into the teleconference line.

11At 1:10 p.m. I requested an AABS Case Management Officer ("CMO") contact Ms. Wang, the applicant's representative, to request her presence at the hearing as well as the applicant's presence.

12At 1:31 p.m. the CMO informed me that, after being kept on hold while someone in Ms. Wang's office tried to locate her, she [the CMO] was finally advised by an assistant that Ms. Wang would not come on the line and had advised the assistant that she [Ms. Wang] was not "on the file".

13At 1:33 p.m. the CMO advised me that Ms. Wang's legal assistant came on the line and told her that Ms. Wang was "not feeling well and just this moment left the office". Further, no one else was prepared to take part in the hearing.

14At 1:35 p.m. I advised the parties participating in the teleconference that the hearing had ended and, subject to submissions from the parties, it was the Tribunal's intent to dismiss "as abandoned" the application without a hearing under the requirements of Tribunal Rules 3.4, 3.5 and 3.7.¹

15This notice of intention to dismiss was contained in my order dated February 7, 2017, and the parties were advised that they could make written submissions in support of their position regarding a dismissal of this application as abandoned.

THE APPLICANT'S POSITION:

16The applicant submits that the application to the Tribunal should not be dismissed as abandoned, as an agent, Pavlos Achlioptas, was "the proper representative assigned to the Teleconference Hearing."

17Further, the applicant submits that there was no representative of the applicant at the hearing because of an error made by a scheduling assistant, who is no longer employed with the law firm.

THE RESPONDENT'S POSITION:

18The respondent submits that the applicant's application should be dismissed as abandoned without a hearing for the following reasons:

a. The applicant failed to seek an adjournment well in advance of the rescheduled hearing date of January 17, 2017;

b. The applicant refused to participate in the second hearing date even though the parties' geographic locations had no impact on a teleconference proceeding;

c. The applicant and her representative failed to attend the third hearing date without any notice;

d. The applicant's representative, Jing Wang, refused to attend the third hearing date despite having submitted a completed and signed DOR.

19The respondent also seeks an award of costs on a full indemnity basis.

RESULT:

20After carefully reviewing the written submissions of both the applicant and the respondent, I find that this application should be dismissed without a hearing as abandoned.

21I make no award of costs.

APPLICATION OF LAW TO FACTS

Dismissal as Abandoned

22Under section 3.4(d) of the Rules, the Tribunal may dismiss an appeal without a hearing if the party filing the appeal has abandoned the proceeding.

23In the matter before me, the applicant provided no reasons for non-attendance at the February 7, 2017 hearing until I ordered submissions to show cause why the application should not be considered abandoned. My order was sent to the parties on February 10, 2017. The applicant served a letter outlining her position on February 17, 2017.

24In the letter, signed by Mr. Yeung, he lays the blame for non-attendance on the shoulders of an unnamed scheduling assistant who "is no longer employed with our firm".

25He states that this anonymous scheduling assistant advised the Tribunal that Ms. Wang was the representative for the January 17, 2017 hearing date but that she was not the representative for the "unilaterally rescheduled" hearing of February 7, 2017. Further, this assistant failed to correct the error and advise the parties. Additionally, Ms. Wang was on sick leave on February 7, 2017 and unaware that she was listed as the representative.

26I take issue with virtually all of the above statements made by Mr. Yeung. Firstly, a DOR advises the tribunal of who is representing the client – not for a specific issue but on the file in its entirety. If there are changes in representation and the Tribunal is not advised, then all communication continues to be directed to the named representative.

27When the application was filed in this matter on May 10, 2016, Mr. Yeung was listed as the applicant's representative. A factum/application record ("the factum") was filed with the Tribunal on October 21, 2016, in preparation for the hearing scheduled for November 2, 2016. On the front page of the factum, a lawyer named Pavlos Achlioptas was listed as the representative, however the factum was signed by Mr. Yeung as "representative of the applicant".

28The filing was immediately followed by a letter also dated October 21, 2016 from Mr. Yeung advising that there was a "typographical error on the Application Record. The Applicant's representative should have been listed as Kai Kwong Yeung [Mr. Yeung] and not Pavlos Achlioptas."

29The Tribunal was only advised of Mr. Achlioptas' responsibility for the file in the submissions regarding a pending dismissal as abandoned. Coupled with the apparent lack of knowledge by anyone in the firm as to who was representing the applicant, and without a supporting affidavit from Mr. Achlioptas, I do not give any weight to the allegation that he is the lawyer with carriage of the file.

30Secondly, the January 17, 2017 hearing was not "unilaterally rescheduled". It was rescheduled to the afternoon of February 7th, which was one of three dates specifically submitted by Mr. Yeung when he requested an adjournment of the January 17th hearing. The Notice of Rescheduled Hearing was sent to Ms. Wang directly (as well as the other parties) on January 25th more than a week before the new hearing date.

31Thirdly, Ms. Wang was apparently not on sick leave, as Mr. Yeung submits, when the CMO contacted her office. I do not dispute that she may have been feeling unwell, but at the time of the phone call it was clear that she was in the office and able to instruct an assistant to advise the CMO that she would not attend the hearing.

32Ms. Wang was appointed as the representative of the applicant in the DOR. Ms. Wang herself signed the form, and it was received by the Tribunal on January 16, 2017. The covering letter served with the DOR was signed by Mr. Yeung. To say that Ms. Wang was unaware that she was representing the applicant is simply disingenuous.

33Mr. Yeung submits that the applicant was in his office on February 7, 2017 and prepared to proceed with the hearing. He has not submitted any evidentiary proof of this.

34The applicant submits that Rule 3.1 applies in the case before me. In particular, she submits that the Rules are to be liberally construed and applied to ensure a fair process and a resolution on the merits of a case. This is only a partial quote of the rule. It actually states that the Rules should be used to "ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal". [emphasis added]

35The accident that is the subject matter of this application occurred on July 17, 2011. From my review of the submissions, it seems that this application has been burdened with procedure over substance. Tremendous amounts of resources have been used to accommodate this applicant, who has requested and received several adjournments, and who failed to attend two scheduled Tribunal hearings.

36It is my opinion that to allow this application to go forward would be the antithesis of the intent of the Rules to ensure "efficient, proportional, and timely resolution". The ability to achieve this type of resolution was relinquished by the applicant when she failed to attend the latest hearing in a long string of cancellations and re-schedulings. Her non-attendance at the hearings without reasons that were either timely or provided proactively is indicative of abandonment of the application.

Costs

37The applicant made no submissions with regard to costs.

38The respondent relies on the Tribunal's Rule 19.1² and submits that the applicant's "actions and inactions" from the filing of the application in May 2016 until the final disposition of the application "constitute acts that are unreasonable and frivolous".

39In particular, the respondent points to the "last minute request for adjournment of and refusal to attend the hearing on January 17, 2017 as well as her failure to attend the appeal hearing on February 7, 2017".

40I understand that the application before me has a long history that has undoubtedly been frustrating and costly.

41As is often the case, I find that it is impossible to distinguish whether the "actions and inactions" were those of the applicant or her representative.

42Under s. 17.1 of the Statutory Powers and Procedure Act³ a Tribunal may "order a party to pay all or part of another's party's costs in a proceeding" if the "conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith…".

43I have no authority to award costs personally against a representative and I do not find that the applicant's behaviour has met the threshold required by the Rules.

DECISION

44Based on the evidence and facts submitted and for the reasons given above, I have determined that under the requirements of the Tribunal Rules the application is dismissed as abandoned without a hearing and no award of costs is to be made.

ORDER

45Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs that file 16-000213/AABS be administratively closed.

Released: May 29, 2017

Ruth Gottfried, Adjudicator

Footnotes

Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the "Rules")
Rule 19.1 – Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

S. L. v. Certas Home and Auto Insurance Company, 2017 CanLII 69275

Case Summary