Licence Appeal Tribunal
Tribunal File Number: 17-005228/AABS
Case Name: 17-005228/AABS v Toronto Transit Commission
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:
Applicant
and
Toronto Transit Commission
Respondent
MOTION DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: James Armstrong, Counsel
For the Respondent: Tamara Broder, Counsel
Heard in person on: January 25, 2018
Court Reporter: Vlad Serdyuk
BACKGROUND:
1This hearing was scheduled to be held in person on January 25 & 26, 2018, at 9:00 a.m.
2On January 24, 2018, at 2:10 p.m. the Tribunal received a notice of motion from the applicant’s representative seeking an order from the Tribunal to remove the firm Trianta Longo LLP from the record as there had been a breakdown in the solicitor client relationship. Counsel requested an adjournment of the hearing in order to allow the applicant to obtain new counsel. He confirmed the applicant was aware of the hearing date and that he would be in attendance should the adjournment be denied but would be unable to represent the applicant.
3On the same date, the respondent opposed the adjournment request and indicated that it would be seeking a dismissal of the arbitration.
4The Tribunal advised that the motion would be decided by the Hearing Adjudicator. On January 25, 2018, the parties made oral submissions.
SUBMISSIONS:
5The applicant’s representative requested to file a sealed affidavit outlining the facts that led up to today pertaining to why the applicant was not in attendance, as well as the reasons for the breakdown in the solicitor client relationship.The representative opposed disclosing the affidavit to the respondent and argued it contained information that could prejudice the applicant in the future. Further, he maintained there was little guidance in the Licence Appeal Tribunal Rules of Practice and Procedure (“LAT Rules”) with respect to the issue and relied on s.25 of the Statutory Powers and Procedures Act (“SPPA”) which provides the Tribunal with the authority to maintain control over its process.
6The respondent opposed counsel’s removal from the record and adjournment request for the following reasons:
(i) The stage of the proceeding and the timing of the request. The respondent argued it was inappropriate to provide notice at 1:00 p.m. the day before the hearing which prejudices the respondent. The respondent has incurred significant costs in prepping its materials, preparing its witnesses and the cost of attendance of counsel at the hearing;
(ii) The removal of the representative at this stage would also prejudice the applicant as she is left at the last minute without representation;
(iii) Further, counsel gave notification of its withdrawl after the respondent provided its last offer to settle which is suspect and demonstrates that counsel was not prepared to proceed with the hearing1;
(iv) An adjournment would not be in line with a fast and expedient hearing which is the LAT’s mandate.
7The respondent submitted an affidavit and caselaw in support of its position.2 The affidavit outlines the respondent’s version of events up until the hearing date. This matter arises from a second application on the same issues. The affidavit attaches the case conference reports and order of Adjudicator Treksler dated February 9, 2017 which scheduled a hearing for June 21, 2017 and made an order for the production of documents. An additional case conference report of Adjudicator Treskler dated March 20, 2017 indicates that the application was withdrawn. Counsel had not complied with production orders and was not ready to proceed.
8The respondent requested that the Tribunal dismiss this application on the basis that the applicant has participated in the whole process, was aware of the hearing date and no reason has been provided for her absence. Further, both the applicant and her representative have a history of this behaviour as noted above. This is an abuse of process and not in line with procedural fairness and natural justice.
9The respondent requested that if the Tribunal does not dismiss the application and grants the adjournment that it be allowed to file the same submissions. Further that the applicant be provided with strict deadlines for future dates.
DECISION:
10The LAT does not have any Rules pertaining to counsel removing themselves from the record or requiring the Tribunal’s permission in order to do so. As such, it is not necessary for counsel to seek permission in such a case. A Tribunal can make orders to control its proceedings and prevent an abuse of process. Section 23(1) of the SPPA states that:
“A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”
11However, I do no not find that an order requiring counsel to stay on the record is required in this case. I found the cases submitted by the respondent distinguishable as one dealt with a criminal court matter and the other a civil tort case. While the courts may have adopted the principals outlined in the Cunningham decision, I do not feel these cases are relevant to an administrative Tribunal.
12While I find it unfortunate that the applicant’s representative waited until the last minute to request an adjournment, I do not feel that it would be in line with procedural fairness and natural justice to force counsel to represent someone where there has been a breakdown in the solicitor client relationship. I take counsel’s word that there has been a breakdown in the solicitor client relationship.
13As a result, I do not find the submission of the sealed affidavit necessary and it is confirmed that counsel has removed himself from the record.
14The respondent’s request for a dismissal of the application without a hearing is denied. I feel it would be procedurally unfair to dismiss the applicant’s application as she has become self-represented and has not had the opportunity to confirm with the Tribunal whether she is going to represent herself, hire alternative legal representation or withdraw her application. While I aknowledge that the respondent has incurred costs and has been inconvenienced I do not feel that this outweigh’s the applicant’s potential entitlement to accident benefits. The Tribunal has to be more flexible with respect to the Rules when it comes to self-represented parties as there is a power inbalance.
15To balance the interests of the respondent, it is allowed to rely on the same materials it has already filed. Should it wish to file a supplementary brief, it will be permitted to do so.
16For the reasons outlined above, this hearing is adjourned to a date to be determined.
17The applicant is put on notice that if she fails to attend another scheduled hearing date, her application may be dismissed pursuant to LAT Rules 3.4 and 3.5 and s. 4.6 of the SPPA.
18The applicant will advise the Tribunal by February 26, 2018 whether she has retained alternative counsel, whether she will represent herself or wishes to withdraw her application.
19Once the applicant confirms her intentions to proceed, a case conference will be scheduled to discuss scheduling a new hearing date.
20The applicant is hereby given notice that her failure to respond by the above deadline or attend future hearing or case conference dates may result in a decision being made in her absence as per LAT Rule 3.5
21Nothing in this Order limits any other requirement under the Insurance Act, or the Tribunal’s Rules.
Released: February 1, 2018
Rebecca Hines, Adjudicator
Cunningham v. Lillies, 2010 SCC 10, 2010 CarswellYukon 21
Todd Family Holdings Inc. v. Gardiner, 2015 ONSC 6590, 2015 CarswellOnt 16195