Licence Appeal Tribunal
An Appeal of 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:
N.H. Inc. Appellant
and
Tarion Warranty Corporation Respondent
ORDER TO DISMISS APPEAL
Order made by: Zahra Dhanani, Adjudicator
Date of Order: February 11, 2019
OVERVIEW
1This Order dismisses the appellants’ appeal of a Decision Letter issued by Tarion Warranty Corporation on June 8, 2018 (“Decision Letter”), because I find the appellant has abandoned its appeal.
2In the matter before me a case conference was held on September 25, 2018 before this Tribunal but the parties were unable to resolve the issues in dispute.
3On consent, the parties agreed to provide each other with disclosure of their documents by October 30, 2018.
4The appellant did not provide the respondent with disclosure by October 30, 2018. As a result the respondent requested another case conference, which took place on January 11, 2019. The appellant was notified of the case conference by the Tribunal in a Notice of Case Conference sent to its last known email address.
5The appellant did not attend the January 11, 2019 case conference.
6The respondent had requested disclosure from the appellant’s counsel several times and had not received any response. As of the January 11th, 2019 case conference no disclosure had been provided by the appellant to the respondent. Apellant’s counsel submitted that they had not had any communication with the appellant since the end of October, 2018. Appellant’s counsel had tried to contact the appellant and seek direction several times however was unable to reach them. Therefore, counsel for the appellant submitted that they do not intend to continue to act as the appellant’s counsel. Therefore there was no one at the case conference on behalf of the appellant.
7The Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, Version I (effective October 2, 2017) (the “Common Rules”) apply to this hearing. Under Rule 3.4 (d) of those Common Rules, the Tribunal may dismiss an appeal without a hearing if the party filing the appeal has abandoned the proceeding.
8Rule 3.5 of the Common Rules sets out the procedure for dismissing an appeal without a hearing. The Tribunal must give notice of its intent to dismiss, with reasons for its intention to dismiss. The Tribunal must inform the parties of their right to make written submissions concerning the intended dismissal of the appeal without a hearing. The parties will have a minimum of 5 days to make written submissions as to whether the hearing should be dismissed without a hearing or not. The Tribunal will then consider any written submissions provided and make its decision about whether to dismiss the appeal without a hearing or proceed with the appeal.
9On January 23, 2019, the Tribunal delivered to the parties, including to the appellant at its last known address, a Notice of Intent to Dismiss the Appeal on the grounds that it appeared that the appellant had abandoned its appeal. The parties were given 10 days to make written submissions as to whether or not the appeal should be dismissed. The appellant has not made written submissions, nor has it contacted the Tribunal since the Notice of Intent to Dismiss was issued to the parties.
10I find that the appellant has abandoned its appeal for the following reasons: (a) contrary to rule 14.6 of the Rules the appellant did not appear at the case conference, (b) the appellant has not been in contact with their counsel for close to three months (c) counsel for the appellant has ceased acting as counsel for the appellant, stating they have not been given any instructions by their client in almost three months and therefore can no longer represent them at the hearing and (d) finally, the appellant did not provide submissions as required in the Notice of Intent to Dismiss.
ORDER
10In accordance with Rule 3 of the Common Rules, the Tribunal orders that this appeal be dismissed.
LICENCE APPEAL TRIBUNAL
Zahra Dhanani, Adjudicator
Released: February 14, 2019