Licence Appeal Tribunal
Tribunal File Number: 16-001649/AABS
Case Name: 16-001649 v Aviva General Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
R. U.
Applicant
and
Aviva General Insurance Company (formerly RBC Insurance Company)
Respondent
ADJOURNMENT DECISION
Adjudicator: Catherine Bickley
Appearances: Philip R. Cumbo, Counsel for the respondent, Kevin Lin, Counsel for the applicant
INTRODUCTION
- On January 13, 2017, I issued a bottom line decision declining to dismiss this application and granting the applicant’s adjournment request. These are the reasons for that decision.
OVERVIEW
The applicant was absent at the start of a hearing scheduled for January 11 and 12, 2017 to deal with her entitlement to income replacement benefits, medical benefits, and costs of examination.
The applicant’s counsel explained that she had left Canada on January 5th and was in Germany with her elderly mother who had recently had a stroke.1 Counsel had been unable to get instructions from his client on an existing settlement offer from the respondent or on any matters related to the hearing. He requested an adjournment to an unknown future date.
The respondent opposed the adjournment request and submitted that the application should instead be dismissed.
I adjourned the hearing for 24 hours, directing the applicant’s counsel to contact his client, get instructions and determine how and when the applicant would be able to participate in the hearing.
On January 12, the hearing reconvened by teleconference. The applicant’s counsel advised that he had been unable to reach his client. He had, however, discovered through a family friend of the applicant that the applicant was staying in Germany while her mother’s situation stabilized and had not yet booked a return flight to Canada. He did not know how serious the stroke was or when the applicant would return to Canada.
ISSUES
A. Should the application be dismissed because:
(i) it is “frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process,” or,
(ii) the applicant has abandoned the process?
B. Should the hearing be adjourned?
RESULT
- The application is not dismissed. The adjournment is granted.
ANALYSIS AND DECISION
A. (i) Should the application be dismissed because it is “frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process”?
The Tribunal’s Rule 3.4(a) permits the dismissal of an application that is “frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process.”
The respondent notes that the applicant did not attend the October 26, 2016 case conference. It submits that this failure, in combination with her failure to advise the Tribunal and the respondent that she would not be attending the January hearing, shows that she is not taking the process seriously. She had notice of this hearing and took no steps to advise the Tribunal or the respondent that she would not be attending. The respondent says these actions amount to an abuse of process. As well, the lack of advance notice of the adjournment request amounts to bad faith.
The applicant disagrees that her behaviour or that of her counsel amounts to an abuse of process. She acknowledges she did not participate in the case conference but says she was available to give instructions by telephone.
The applicant submits that it was reasonable for her counsel to not advise the Tribunal or the respondent of her absence because doing so would have weakened her position in settlement negotiations. Thus, the lack of advance notice of the adjournment request does not amount to bad faith. If the application were to be dismissed, she would experience extreme prejudice: as the benefits in issue were denied in 2014, she would be statute-barred from returning to the Tribunal to challenge those denials.
In contrast to Rule 19, which deals with the potential cost consequences of a party’s behaviour during a proceeding, Rule 3.4(a) focuses on whether an application is “frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process”. The respondent’s submissions focused on the behaviour of the applicant and her counsel rather than on the application itself. I am not convinced that this application meets any of the criteria set out in Rule 3.4(a). Accordingly, I find that it would not be appropriate to dismiss the application on this basis.
A. (ii) Should the application be dismissed because the applicant has abandoned the process?
The Tribunal’s Rule 3.4(d) permits dismissal of an application when “[t]he party filing the appeal has abandoned the process”.
The respondent submits that the applicant has effectively abandoned or constructively withdrawn her application by leaving the country without giving instructions to her counsel. There is no end in sight to this hearing given the uncertainty about when and if the applicant will return to Canada.
The applicant submits that she has family and a job in Canada and she will return once her mother’s health crisis has passed.
I find that the applicant has not abandoned or constructively withdrawn her application. The family and work connections that she has in Canada make it likely that she will return. While the applicant’s failure to give instructions to her counsel is troubling, that failure, in the context of sudden travel due to a medical emergency, is insufficient to show that the applicant does not intend to proceed with her application. Accordingly, I find that it is not appropriate to dismiss this application as abandoned.
B. Should the hearing be adjourned?
The applicant submits that, when faced with a sudden medical emergency involving an elderly relative, it was reasonable for her to leave the country. This was a difficult situation which could not have been anticipated.
The respondent submits that an adjournment, particularly on such short notice, causes it both inconvenience and expense. Even 24 hours notice that an adjournment was required would have prevented it incurring unnecessary legal fees and other expenses. If the applicant had to leave the country suddenly, she should have left instructions with her counsel and promptly given the Tribunal and respondent notice that she required an adjournment. The respondent would have consented to a timely adjournment request.
I have significant concerns about the applicant’s failure to give the Tribunal and the respondent notice that she would not be attending the January hearing. These concerns, in my view, are more appropriately dealt with in the context of the respondent’s cost motion than in determining the appropriateness of an adjournment.
The applicant’s counsel advised that his client became unavailable for the scheduled hearing because her mother had a stroke the week before the hearing causing the applicant to travel on short notice to Germany. Her decision to travel to be with her ill mother is understandable. Further, if this application were to be dismissed, the applicant would be faced with a limitation period preventing her from challenging the denial of the benefits in issue. In the circumstances, I am not prepared to dismiss this application, finally disposing of the applicant’s possible entitlement to the benefits in dispute.
OTHER PROCEDURAL MATTERS
The respondent objects to the applicant submitting Dr. Andrew Shaul’s report and calling Dr. Shaul as an expert witness. In my view, it would be helpful to determine this issue before the hearing. The parties dealt very briefly with this issue in their December 2016 written submissions. If the parties wish to make any further submissions on this issue the respondent may do so no later than March 23, 2017, the applicant may respond by April 6, 2017 and the respondent may, if it deems it necessary, make any reply submissions by April 13, 2017.
A two day hearing is set for July 31 and August 1, 2017. As indicated in the Tribunal’s October 28, 2016 order, evidence will be given in person and via teleconference. These dates are peremptory to the applicant.
The applicant is directed to confirm to the Tribunal by no later than April 6, 2017 that she intends to attend the hearing scheduled for July 31 and August 1, 2017. Failure to do so could lead to dismissal of this application as abandoned.
ORDER
The Tribunal orders the following:
This hearing is adjourned until July 31 and August 1, 2017. These dates are peremptory to the Applicant.
The parties may make further submissions regarding the calling of evidence from Dr. Andrew Shaul. Those submissions are to follow the schedule set out in paragraph 21.
The Applicant must confirm to the Tribunal by no later than April 6, 2017 that she intends to attend the hearing scheduled for July 31 and August 1, 2017.
Released: March 2, 2017
Catherine Bickley, Adjudicator
Footnotes
- Applicant’s counsel submitted on January 11 and 12, 2017 that the applicant’s mother had had a stroke the previous week and that the applicant had left Canada on January 5th. Subsequent submissions reveal that both the date of the mother’s stroke and the date of the applicant’s departure from Canada are unknown (see, for example, Part II, paragraph 13 of the applicant’s submissions on costs, January 26, 2017). The reasons in this decision reflect the information that I had at the time I made the decision.