Safety, Licensing Appeals and Standards Tribunals Ontario

Licence Appeal Tribunal

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 n^o^ 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

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair Date: October 16, 2017 File: 16-002658/AABS Case Name: C.N. v. Aviva Canada Insurance

Written Submissions By: For the Applicant: Ivor Abraham For the Respondent: Shivani Mehta and Michelle Friedman

Overview

1Should this application be dismissed without a hearing? That is the question underlying this request for reconsideration.

2The question arose after the applicant, C.N., failed to attend two case conferences. In response, the Tribunal notified him and his insurer, Aviva Canada Insurance (“Aviva”), of its intention to dismiss the application, and asked for their submissions in response. Aviva argued that C.N. abandoned this application and, thus, the application should be dismissed. C.N. argued that he withdrew the application and, in the interest of access to justice, should not be prejudiced by a dismissal.

3The Tribunal agreed with C.N., finding the application withdrawn. In this request for reconsideration, Aviva asks me to hold otherwise for obvious reason: whereas a withdrawn application can be commenced afresh, one dismissed as abandoned cannot. Aviva wants finality.

4For the reasons that follow, I agree that this application should not be dismissed either because it was withdrawn or never abandoned. Accordingly, I deny Aviva’s request.

The Facts

The accident

5On September 18, 2015, C.N. was injured in an automobile accident. As a result, he applied to Aviva for certain benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. The exact nature of those benefits is irrelevant. Aviva refused to provide them, prompting C.N. to commence this application on September 14, 2016.

The first case conference

6The application took the usual course. After requesting and receiving Aviva’s response to the application, the Tribunal scheduled a case conference to allow the parties to discuss, among other things, settlement and hearing procedure. To that end, it sent the parties a Notice of Case Conference notifying them that a telephone case conference would take place on November 29, 2016 at 9:00 a.m., and outlining the necessary dial-in information. At the same time, the Tribunal also asked the parties to file their case conference summaries, which the parties then filed.

7The case conference took place as scheduled. C.N.’s paralegal, Mr. Abraham, dialed in, as did Aviva’s counsel and client representative. However, C.N. did not. Mr. Abraham attempted to contact C.N., but was unsuccessful. C.N. had not given the Tribunal or Mr. Abraham any prior indication that he would not attend.

8Faced with C.N.’s absence, Mr. Abraham informed those present that the application was being withdrawn. For that reason, Adjudicator Anwar, who presided over the matter, advised the parties that, given the application’s withdrawal, the Tribunal would close its file. The case conference concluded.

The second case conference

9However, the Tribunal did not close its file. Instead, as he explained in the Case Conference Report he issued to the parties on January 11, 2017, Adjudicator Anwar questioned whether C.N. had authorized Mr. Abraham to withdraw the application. For that reason, he scheduled a second case conference to discuss the matter. The Tribunal sent the parties a second Notice of Case Conference, notifying them that a telephone case conference would take place on January 27, 2017 at 11:00 a.m., and detailing the necessary dial-in information.

10The case conference took place. However, again, there was a problem. This time neither C.N. nor Mr. Abraham called in. Adjudicator Anwar waited, as did Aviva’s counsel and client representative. Tribunal staff eventually contacted Mr. Abraham, who advised that he would join the call shortly. However, after waiting for 30 minutes for C.N. and Mr. Abraham to join, Adjudicator Anwar ended the case conference.

The notice of intent to dismiss

11Adjudicator Anwar wanted to find out what was going on. He thus invoked Rule 3.4 of the Tribunal’s Rules of Practice and Procedure (“the Rules”), the Tribunal’s rule governing summary dismissal of an application without a hearing. In both his Case Conference Report and Order of February 7, 2017, Adjudicator Anwar provided the parties with notice of his intention to dismiss C.N.’s application without a hearing because of C.N. having missed both case conferences. He directed the parties to file their written submissions in response to this notice within 10 days, and further directed C.N. to explain why he missed both case conferences as well as why the Tribunal should allow his application to continue.

12Aviva waited to receive C.N.’s submissions. By the afternoon of February 17, 2017 – i.e., 10 days after the Tribunal’s order – Aviva had still not received them. So it served and filed its own, by fax at 3:28 p.m. In short, Aviva argued that C.N. abandoned his application and, thus, that the application should be dismissed. Aviva also asked for costs in the amount of $250.

13Shortly thereafter, Mr. Abraham filed his own submissions on C.N.’s behalf – a one-page letter that the Tribunal received via fax at 5:02 p.m. – without providing a copy to Aviva. In his letter, Mr. Abraham failed to address the first case conference but explained why he and C.N. missed the second: they attempted to call in together but mistakenly used the “original access code,” which I take to mean the dial-in information included in the Tribunal’s first Notice of Case Conference. According to Mr. Abraham, he and C.N. waited on the line for 15 minutes, and then contacted Tribunal staff, who eventually provided him with the “new code” which he then used. However, it appears that, by then, the case conference had ended. Mr. Abraham maintained that the Tribunal should allow C.N. to “withdraw the issues, as per original [sic] request.”

The Tribunal’s decision

14In its decision of May 10, 2017, the Tribunal found that C.N. withdrew his application at the first case conference. The Tribunal accepted that C.N. was “in agreement with the steps taken by his legal representative at the first case conference” and, further, that C.N. and Mr. Abraham were “present and made efforts to contact the Tribunal” during the second case conference: see paras. 18-19. It also denied Aviva’s request for costs. In its view, C.N.’s conduct was not based on bad faith, was not vexatious, and did not amount to an abuse of process.

Discussion and Reasons

15Aviva now asks that I reconsider the Tribunal’s decision. It bases its request on two main arguments.

C.N.’s failure to serve Aviva with his submissions

16The first is, in essence, a procedural fairness argument.

17Aviva takes issue with the fact that C.N.’s submissions responding to the Tribunal’s proposal to dismiss his application were filed beyond the February 17, 2017 deadline set out in the Tribunal’s Order of February 7, 2017. More importantly, Aviva highlights that C.N. failed to provide it with a copy of these submissions, thereby preventing its ability to respond. Aviva argues that the Tribunal’s acceptance and reliance upon C.N.’s submissions, particularly given Aviva’s inability to respond to them, was a breach of procedural fairness.

18I agree with Aviva that C.N. filed his submissions late. The Tribunal’s Order of February 7, 2017 made clear that the parties had 10 days – or until Friday, February 17, 2017 – to respond. The Tribunal received C.N.’s submissions on the Friday deadline but at 5:02 p.m. Pursuant to Rule 6.2 of the Tribunal’s Rules, the Tribunal is therefore deemed to have received C.N.’s submissions on the next day that was not a holiday, namely Tuesday, February 21. (Monday, February 20 was Family Day.)

19I also agree that Mr. Abraham’s failure to serve Aviva with a copy of C.N.’s submissions – which Mr. Abraham acknowledges but dismisses as an “oversight” – constituted a “completely unreasonable” breach of the Tribunal’s Rules. The Rules provide that all communications with the Tribunal must be copied to the other parties: see Rule 4.3. This is for good reason, particularly in an adjudicative context in which, precisely because they are joined in issue, parties should have the benefit of each other’s submissions. The rule not only enhances transparency and fairness in the adjudicative process, but also enhances the quality of the Tribunal’s decision-making.

20I also agree with Aviva that the Tribunal’s reliance upon C.N.’s submissions constituted a breach of procedural fairness. Aviva should have had the opportunity to respond to them before the Tribunal rendered its decision on May 10, 2017. Indeed, I am most concerned in this matter by the Tribunal being unaware that C.N.’s submissions had not been provided to Aviva. This is something that the Tribunal should have caught and required Mr. Abraham to correct.

21Nevertheless, my agreement with Aviva on these points does not necessarily mean that I should interfere with the Tribunal’s decision. Proof of a breach of procedural fairness is not the end of the inquiry. The operative question is whether the breach had some bearing on the decision at issue. It is trite law that courts may refuse to intervene where the nature of a breach of procedural fairness is inconsequential, trivial, or merely technical in nature – that is, where it occasions no substantial wrong. The same approach should apply here. Why?

22Any breach of the Rules or procedural fairness had no bearing on the Tribunal’s decision. The fact that Mr. Abraham filed C.N.’s submissions late is unfortunate but, for the purposes of this analysis, of little moment. Although he filed them on the February 17, 2017 deadline via fax on 4:58 p.m., the Tribunal did not receive them until 5:02 p.m. – he missed the mark by two minutes. True, the Tribunal was deemed to receive the submissions on the following Tuesday, meaning they were technically late. However, there was no bright-line consequence for this lateness in either the Tribunal’s Rules or its order of February 7, 2017. Had the question been raised at that time, the Tribunal would have had to determine what to do with C.N.’s submissions. Excluding them for being two minutes late would have been, and would be now, an error given that their substantive value far outweighs their marginal non-compliance with the Rules.

23More importantly, Aviva suffered no prejudice because of either Mr. Abraham’s late filing or his failure to provide Aviva with a copy of C.N.’s submissions. For the reasons above, the former is a distraction. Indeed, Aviva does not suggest that C.N.’s submissions should be excluded because of their late filing. Instead, it simply highlights the fact that the submissions were late, and that C.N. had the benefit of reading Aviva’s arguments before filing his own, something he could have done anyway under the terms of the Tribunal’s February 7, 2017 order assuming he filed them on time. Neither of these gives rise to any actual prejudice.

24Moreover, although I agree that Mr. Abraham’s failure to provide Aviva with a copy of C.N.’s submissions was a “completely unreasonable” breach of the Rules, I fail to see how this breach had any real consequence or, likewise, how Mr. Abraham’s compliance with the Rules would have led to any different result. At their heart, C.N.’s submissions – a one-page letter – offered Mr. Abraham’s account of his instructions from C.N., along with his explanation for his and C.N.’s absence from the second case conference. What could Aviva have possibly said to affect the substance of any of this? In my view, nothing. Mr. Abraham’s account would remain just that. In fact, in responding to Aviva’s request for reconsideration, Mr. Abraham provided Aviva with a copy of the one-page letter at issue. In this respect, Mr. Abraham cured the procedural deficiency resulting from his earlier failure to provide Aviva with his letter. Aviva could have filed reply submissions to address the letter. It chose not to.

25Ultimately, whether this application was abandoned is a question of fact that the Tribunal determined in C.N.’s favour. I agree with that determination. Through Mr. Abraham’s assistance, C.N. filed a case conference summary before the first case conference. He responded to the Tribunal’s notice of intent to dismiss, albeit late, and, in explaining the reason for his absence from the second case conference, demonstrated his ongoing concern for this application. He has also participated in this request for reconsideration to defend his position, including explaining why he missed the first case conference. (Apparently, his cell phone service was cut off for non-payment.) On a common sense view of the facts, I simply cannot agree with Aviva that C.N. abandoned this application, nor am I am able to see how the Tribunal, even with the benefit of Aviva’s response to C.N.’s submissions, could have come to that conclusion.

26I therefore give no effect to Aviva’s submissions concerning the Tribunal’s breach of procedural fairness.

The Tribunal’s finding that the application was withdrawn

27Second, Aviva argues that the Tribunal erred in law by answering the wrong question. Aviva argues that “the question that Adjudicator Anwar was to consider was not whether [C.N.] had properly withdrawn his application at the first case conference, but was whether the application should be dismissed for [C.N.’s] failure to attend two case conferences.”

28I disagree.

29Under Rule 3.4, the Tribunal may dismiss an application without a hearing in only a limited number of situations. One of those situations is where the application has been abandoned: see Rule 3.4(d). Adjudicator Anwar’s Case Conference Report and Order of February 7, 2017 did not mention this, or any other, subsection, but do mention that it was C.N.’s failure to attend both case conferences that prompted his notice under Rule 3.5. He cited the same impetus in his decision: see para. 8. That being said, the central issue was not, as Aviva submits, “whether the application should be dismissed for [C.N.’s] failure to attend two case conferences.” Rather, the central issue was whether the facts satisfied one of the grounds under Rule 3.4, more specifically, as Aviva argued, whether C.N. abandoned this application. The Tribunal held that C.N. had withdrawn the application. That finding is a full response to the question of whether C.N. abandoned this proceeding or even, in my view, “whether the application should be dismissed for [C.N.’s] failure to attend two case conferences.” The answer is no, the application was already withdrawn.

30Aviva offers no other reason to interfere with the Tribunal’s finding. However, even if I were given some reason to doubt that conclusion, it is obvious to me, for the reasons above, that C.N. has not abandoned this application. For that reason, I would also refuse to give effect to Aviva’s submissions on this point.

Costs

31At the outset of its request for reconsideration, Aviva asked that the Tribunal’s order be varied and that I grant it costs in the amount of $350. Aviva did not make any specific arguments to support its request for costs, let alone explain why, despite initially asking the Tribunal for $250, it now seeks $350. In any event, I would not grant costs.

32In denying Aviva’s request, the Tribunal found that C.N.’s conduct was not based on bad faith, was not vexatious, and did not amount to an abuse of process. While Aviva did not reference it, the Rules also make clear that costs may be awarded in the face of conduct that is unreasonable. Arguably, C.N.’s failure to attend the first case conference was unreasonable. Even if one accepts, as he now offers, that his cell phone service was terminated for non-payment, I find it difficult to believe that he could not find any other way to dial into the call. Surely, he had the time and means to borrow someone else’s phone, use a pay phone, or find an available landline. Then again, even if C.N.’s conduct can be fairly described as unreasonable, its consequence only simplified matters. By the end of the case conference, the Tribunal had accepted his application’s withdrawal and, but for the Tribunal later questioning that withdrawal, the proceeding would have concluded. I see no purpose under the Rules for ordering costs to impugn this single instance of unreasonable behaviour in these unique circumstances. Based on my review, any conduct sufficient to warrant an order for costs is attributable solely to Mr. Abraham, who, of course, is not a party and thus cannot be the subject of a cost order under Rule 19.

Oral submissions

33Lastly, Aviva asked for the opportunity to make oral submissions in support of its request. I found the issues straightforward and Aviva’s written submissions clear. Thus, there was no need for oral submissions.

Conclusion

1. This request for reconsideration is denied.

Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario