RECONSIDERATION DECISION
Before: Heather Trojek, Vice-Chair
File: 18-003753/AABS
Case Name: Z.P. v. Guarantee Insurance
Written Submissions by:
For the Applicant: Ian Miller, Student at Law, Baghbani Law
For the Respondent: Not applicable (submissions were not required)
OVERVIEW
1This Request for Reconsideration arises out of the Tribunal’s decision to deny the applicant’s request to adjourn a written hearing.
2On November 9, 2018, the applicant requested an adjournment of a written hearing scheduled to proceed on December 17, 2018. The Tribunal denied the applicant’s request. The applicant did not agree with the Tribunal’s decision and filed a Request for Reconsideration.
3The applicant requested that the hearing be adjourned because her counsel was required to take an unanticipated six week leave of absence for medical reasons. Due to the unexpected nature and length of the medical leave required, applicant’s counsel was unable to prepare for or proceed with the hearing. The applicant submitted medical evidence to support her adjournment request.
4The respondent consented to the applicant’s request to adjourn the hearing and to the timetable for the new hearing that was contained in the applicant’s adjournment request. As a result, the Tribunal did not request that the respondent reply to the applicant’s Request for Reconsideration.
5Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
6The applicant’s request to adjourn the hearing was granted orally with written reasons to follow. Below are my written reasons for granting the reconsideration and adjourning the written hearing.
7I order that the hearing be adjourned to March 16, 2019. I also order that the parties file their evidence and submissions according to the agreed upon timetable provided in the applicant’s request for an adjournment.
ANALYSIS AND REASONS
8Under Rule 18.2 for the Tribunal’s Rules of Practice & Procedure, (the “Rules”). one or more of the following four grounds needs to be established in order for a Request for Reconsideration to be successful:
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;
(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
9The applicant argues that the Tribunal’s decision should be reconsidered because it is procedurally unfair and unjust under the circumstances to require the applicant to proceed with the hearing. Not adjourning the hearing would require the applicant to either retain new counsel in an unrealistically short period of time or proceed without legal representation.
10I agree with the applicant. When rendering its decision, I find that the Tribunal did not properly consider the unique circumstances of the case before it and also failed to balance compliance with its Rules with the principles of natural justice and procedural fairness.
11The main reason why the Tribunal denied the applicant’s request for an adjournment was the applicant’s failure to provide new hearing dates in accordance with the 30 day timeframe required by under its Rules.1
12I find that the Tribunal relied too heavily on a strict adherence with its rules and failed to take other factors into consideration when making its decision. The Tribunal, for instance, failed to address why it denied the adjournment when 1) the respondent consented to the applicant’s adjournment request; or 2) the request was made due to unforeseen and uncontrollable circumstances which were reasonable and supported by documentary evidence.
13I find that the Tribunal also failed to take into consideration the fact that the applicant was unable, due to the length of the medical leave required by her counsel, to provide alternative dates within the 30 days required by the Tribunal’s Rules. The hearing in this matter was scheduled to take place on December 17, 2018. The applicant proposed a timetable requiring that the applicant’s first submissions be filed on February 15, 2019. Based on the length of medical leave required by applicant’s counsel, I do not find that the length of the adjournment request to be unreasonable.
14I find that the Tribunal’s decision to deny the applicant’s adjournment request was based on a strict and narrow application of its Rules. If the Tribunal had considered the unique circumstances of the case before it and balanced its Rules with the principals of natural justice and procedural fairness, I find that the Tribunal would likely have come to a different decision and granted the applicant’s request to adjourn the hearing.
CONCLUSION
15For the reasons noted above, I grant the applicant’s Request for Reconsideration.
16Based on the powers granted to me, I order the written hearing in this matter be adjourned to March 16, 2019. Based on the timetable agreed to by the parties, I order the parties will file their submissions and evidence according to the following timetable.
Applicant’s submissions and evidence due: February 15, 2019
Respondent’s submissions and evidence due: March 1, 2019
Applicant’s reply submissions due: March 15, 2019
17Unless specifically stated otherwise, all previous orders of the Tribunal remain in full force and effect.
Heather Trojek
Vice-Chair
Safety, Licencing Appeals and Standards Tribunals Ontario
Released: December 27, 2018