Z.K. v. Allstate Canada, 2019 CanLII 40236

Licence Appeal Tribunal

Tribunal File Number: 17-006929/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Z.K.

Applicant

and

Allstate Canada

Respondent

ADJOURNMENT DECISION

Decision made by: Cezary Paluch, Adjudicator

Date of Decision: February 25, 2019

Counsel for the Applicant: Self-Represented

Counsel for the Respondent: Jonathan Schrieder

OVERVIEW:

1The applicant was injured in an automobile accident on June 6, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - effective September 1, 2010.

2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3A case conference was held on April 4, 2018 scheduling an in-person hearing for August 21-24, 28, 2018. The main or preliminary issue in this case is whether the applicant is catastrophically impaired.

4On August 17, 2018, a case conference resumption was held and the respondent requested a adjournment of the hearing scheduled to commence on August 21, 2018 as counsel was leaving the firm.¹ On consent, the hearing was adjourned to February 25-28, and March 1 and 4, 2019.

5On February 20, 2019, applicant filed a request to adjourn the hearing scheduled to take place on February 25, 2019. On February 22, 2019, Vice-Chair Hunter, denied the adjournment request and issued an Adjournment Decision.

6On February 25, 2019, at the start of the hearing, the applicant who was self-represented, requested another adjournment of the hearing to allow him to retain counsel. The respondent opposed the request and requested costs.

7For the following reasons, which I provided to the parties orally at the hearing, I find that the applicant has provided sufficient reasons to justify adjourning the hearing in these very unique circumstances especially with the medical emergency that occurred in the hearing room.

8I informed the applicant that on the return date of June 24, 2019, the hearing must start with or without counsel subject only to any genuine extenuating circumstances beyond his control.

ANALYSIS AND REASONS

9The Tribunal’s Common Rules of Practice and Procedure do not specifically provide guidance as to what factors I must consider in deciding whether to grant or refuse an adjournment. However, further authority to adjourn hearings is found in section 21 of the Statutory Powers Procedure Act,² which provides that:

Adjournments

21.A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

10My reading of this provision is that the central consideration on any request for an adjournment is to permit an adequate or full and fair hearing of the matter to take place and assist the adjudicator to make a decision based on the merits of the case.

11The applicant’s former lawyer in a letter dated February 5, 2019,³ notified the applicant that there has been a breakdown of the solicitor-client relationship and that the law firm will no longer be your lawyers with regard to his claim for accident benefits and will not have anything to do with his upcoming hearing scheduled for February 25, 2019 (the “Disengagement Letter”).

12The applicant stated that he received this letter a few days later on or about February 7, 2019 and this was the first that he learned that his lawyer would not be representing him at the hearing. By my calculation this is only about 10 business days prior to the start of this hearing. In my view, this is simply not enough time for the applicant to retain a new lawyer, have them order and review the entire file and prepare for a 6 day in- person catastrophic determination hearing. The applicant expressed that he has had great difficulty finding a new lawyer to take his matter which I accept, as this appears to be a complex matter involving a catastrophic determination that requires a lawyer who is knowledgeable in this specialized area of the law.

13The applicant also explained that he does not have his file from his former lawyer. Although there is indication in the Disengagement Letter that the file can be obtained and the applicant is to contact the lawyer’s assistant to make arrangements of the transfer of the accident benefits file and other related matters. The reality today however is that the applicant, who is self-represented, does not have his file and I do not see how it could be possible for him to conduct his own hearing – perhaps more importantly for the Tribunal to permit an adequate full or fair hearing of this matter.

14The applicant also explained that he does not understand the matter and stated “I don’t know the case.” As a self-represented party, it appeared to me that the applicant lacks the specialized knowledge and experience necessary to navigate the complex proceeding effectively and efficiently. When a party is self-represented, there can be adverse consequences for everyone. A self-represented party may be confused and be unfamiliar with the rules and processes, and the presence of a self-represented party can impose significant additional obligations and demands on an adjudicator that are likely to lengthen the hearing.

15It also appeared to me that throughout the proceedings the applicant was always represented by the same lawyer and anticipated having this lawyer at the hearing. At the two case conferences held on April 4, 2018, and August 18, 2018, the same lawyer was present who also signed the Disengagement Letter. I noted that the Disengagement Letter does state that “I would urge you to obtain independent legal advice immediately as you should be represented by Counsel” which indicated to me that the applicant’s former lawyer felt strongly that the applicant needs to retain a new lawyer to assist him at the hearing. Again, this is a catastrophic determination hearing and likely involves highly technical and complicated medical evidence and is not a simple and straightforward hearing that a self-represented party, especially one that does not have his documents, appears to have suffered a seizure at the hearing, may be unsophisticated and english is his second language, can effectively conduct. These facts were important considerations in my decision.

16I am also satisfied that the applicant is making best efforts to find a lawyer and needs more time. He has provided a copy of signed Direction⁴ from a prospective new lawyer to his former lawyer to obtain his file. I note that the Direction was signed on February 14, 2019, only 6 business days prior to today and this is not enough time for the new lawyer to obtain and review the file.

17During the start of the hearing when I was identifying the parties and dealing with preliminary issues, the applicant started to shake violently, lost control, and fell off his chair to the floor where he remained in a fetal motionless position. It appeared to me that the applicant was suffering a seizure, or some sort of an attack, and this was a medical emergency. Paramedics were immediately called and administered first aid. He was accompanied and assisted by his wife throughout the entire incident. The applicant appeared to recover and stated that he was able to continue but maintained his request for an adjournment. He explained that he had a seizure and cannot sit for long periods of time. I note that if a lawyer was retained to assist the applicant at a hearing, he would not be required to be present and may be excused allowing the lawyer to conduct the hearing without any further interruptions or delays. However, I am still concerned about proceeding with the hearing today and the negative impact that this may have on the applicant’s health and safety as seizures can lead to further injury or be evidence of an underlying medical condition.

18I also noted that the respondent’s witnesses were not present at the hearing (although were on standby) but did not have to be further inconvienienced by having to attend in person, and the impact on the respondent was minimal. However, the respondent requested costs. A request for costs may be made to the Tribunal orally at a hearing, at any time before the decision or order is released. I ordered that costs be added to the issues in dispute and are to be addressed by the hearing adjudicator.

19Once the adjournment was granted, I asked the parties to agree to a return date for the hearing. I allowed the applicant a brief recess to contact his prospective lawyer and ask him for his availability dates. I was concerned that if a date was ordered and the new lawyer was not available because of a prior commitment this would add further delay. The applicant (after speaking with the lawyer’s office) requested a hearing in 4-6 months from today’s date. Respondent’s counsel was not agreeable and preferred a shorter time frame. Respondent’s counsel offered May 20, 2019 as his first preference and June 24, 2019 as his second preference. I ordered the date of June 24, 2019 as this was in approximately 4 months and within the time range that the applicant’s new lawyer would be available to conduct the hearing.

ORDER:

20The hearing scheduled to commence on February 25, 2019 is adjourned. An in-person hearing is scheduled for six days on June 24-28, 2019 and July 2, 2019, starting each day at 9:30 am in Toronto with or without counsel.

21The respondent’s request for costs from the applicant is to be added to the issues in dispute and to be addressed by the hearing adjudicator at the hearing.

22I am not seized.

23The remaining hearing dates of February 26-28, and March 1 and 4, 2019 are vacated.

All other terms of all previous Trubunal orders remain in full force and effect.

Footnotes

1. 1See Case Conference Report released August 24, 2018.
2. 2Statutory Powers Procedure Act, RSO 1990, c S.22.
3. 3I marked this as Exhibit #1 to the preliminary issue regarding the adjournment request only and not part of the hearing on the substantive issues.
4. 4Exhibit # 3.