R.B. v. Tarion Warranty Corporation, 2018 CanLII 130515

Licence Appeal Tribunal

Date: 2018-12-27

Appeal from a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 – to Disallow a Claim

Between:

R.B. Appellant

-and-

Tarion Warranty Corporation Respondent

-and-

Mario Rogue Investments Inc. and Jason Rogue Investments Added Party

ADJOURNMENT ORDER

Order made by: Jeanie Theoharis, Vice-Chair Date of Order: December 27, 2018

OVERVIEW

1The appellant appealed a decision letter of Tarion Warranty Corporation dated July 28, 2017 in which it denied the appellant’s claim with respect to an alleged defect in the appellant’s home. The appeal was filed with the Tribunal on August 14, 2017.

2Case conferences were held on October 12, 2017, December 8, 2017, and April 27, 2018. The hearing was initially scheduled to commence on August 27-29, 2018, but was adjourned to October 2018.

3The October 2018 hearing was again adjourned to November 2018.

4On November 16, 2018, the parties received correspondence from the Tribunal indicating that the appellant’s request to adjourn was granted on a peremptory basis, and that parties ought to be ready to attend and proceed with the hearing on the next scheduled dates. The parties agreed that the hearing could proceed on one of the following block of dates: December 12-14, 2018, December 17-19, 2018 or January 16-18, 2019.

5The hearing was scheduled to commence January 16-18, 2019. The hearing dates were established based on the consent of the parties.

6On or about December 21, 2018, the applicant made a request to adjourn the hearing. The request indicates that the appellant changed legal representation, and the new lawyer needed time to prepare for the hearing and also try to continue to negotiate a settlement.

7The request to adjourn is made with the consent of the other parties to the proceeding. The parties are asking to adjourn the hearing to one of the following block of dates: March 19-21, 2019, February 27-28; and March 19, 2019; and February 12, 14, and 20, 2019.

ANALYSIS

8Having reviewed the request to adjourn, I find the adjournment is not granted.

9The matter relates to a denial of Tarion to warranty alleged defects in the appellant’s home. The appellant filed the appeal with the Tribunal on or about August 14, 2017.

10The Tribunal looks to ensuring there is a fair, open and accessible process, and that proceedings before the Tribunal are resolved in an efficient, proportional and timely manner, without sacrificing natural justice and procedural fairness.

11Following the April 27, 2018 case conference, the member issued a case conference order. Paragraph 7 of that order indicates as follows:

If either the appellant or the Added Party retains representation in this matter, they shall ensure their representative is available on the hearing dates and shall complete the Tribunal’s Declaration of Representative form which is available on the Tribunal’s website at www.lat.gov.on.ca.

12The hearings were set to proceed in August 2018, October 2018 and November 2018. This is the fourth request to adjourn the hearing. On November 15, 2018, the appellant faxed a request to adjourn the hearing indicating he had a specialized medical appointment. He requested the hearing be adjourned to dates in December 2018 or January 2019. At his request, the hearing was adjourned to January 16-18, 2019. Many adjournments have been granted to accommodate the parties in respect of preparing or being available for the hearing.

13A review of the file indicates that the appellant’s prior representation ended on or about November 9, 2018, and new counsel retained December 12, 2018. The appellant had an obligation to ensure that counsel he chooses to retain ought to be available on the hearing dates. This is especially so when the hearing dates are marked peremptory. The hearing, having been adjourned, was set to proceed on January 16-18, 2019, and was marked peremptory. This was conveyed to the parties on November 16, 2018.

14The appellant’s counsel was retained since December 12, 2018. At the time of meeting with the appellant, the hearing dates ought to have been reviewed and acknowledged its peremptory status. The hearing dates were set according to the previous dates noted on consent on the adjournment request. There have been a number of appearances and adjournments already and it is not in the public interest to continue to prolong the adjudication of this issue. The parties have had sufficient time to prepare for the hearing. The dates originally set for the hearing were determined taking into account the complexity of the issues, and party and witness availability. Moreover, they were agreed to by the parties.

ORDER

15The appellant’s request for an adjournment of the hearing is not granted.

16The hearing will proceed on January 16, 17, and 18, 2019, which were dates agreed to by the parties and in which they indicated they were available.

17Except for the provisions contained in this order, all previous Orders made by the Tribunal remain in full force and effect.

18If the parties reach an agreement on the issues in dispute, the applicant shall immediately advise the Tribunal in writing.