RECONSIDERATION DECISION
Before: Jonathan Batty, Associate Chair
File: 17-008493/AABS
Case Name: S.C. v. TD Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Matthew Barteaux, Counsel
For the Respondent: Rachel E. Pano, Counsel
OVERVIEW
1The applicant, the insured in this proceeding, has requested reconsideration of an interlocutory motion decision dated January 16, 2019. On that motion, the applicant was unsuccessful in obtaining an adjournment of a hearing on a preliminary issue until a similar issue has been decided by the Court of Appeal.
2Pursuant 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.
3For the reasons that follow, I deny this request for reconsideration.
FACTS
4The applicant was injured in an automobile accident on May 12, 2004, and sought benefits pursuant to Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ''Schedule'').
5On September 28, 2018 the Tribunal ordered that a preliminary issue take place on January 14, 2019. The preliminary issues were whether the applicant is statute barred from proceeding with his claim for attendant care and housekeeping benefits because he filed his application beyond the 2 year limitation period.
6The applicant has submitted that the respondent is relying on the Tribunal’s decision in S.T. v Economical1 (Tomec decision) to argue that a limitation period begins to run from the date of denial of the benefit, not from when the applicant discovered that he was catastrophically impaired.
7An appeal of the Tomec decision to the Divisional Court (2018 ONSC 5664) has upheld the Tribunal’s decision. In December 2018 the applicant advised that an application for leave to appeal the Decision was filed with the Court of Appeal. Consequently, the applicant submits the preliminary issue hearing should be adjourned pending a decision in that appeal as it may have application in this proceeding.
ANALYSIS
8Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure set out grounds for reconsideration. The applicant submits the two applicable in this case are that:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness (and);
(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
9The applicant acknowledges that there is no guarantee the Court of Appeal will hear an appeal in Tomec and, even if it does, the timing is uncertain. However, despite this uncertainty, the applicant submits that it is more important to delay the Tribunal’s decision in this matter than it is to obtain a timely decision.
10The applicant submits that the risk that the Tribunal’s decision may ultimately be inconsistent with a decision from the Court of Appeal is a highly persuasive reason not to proceed.
11When the Tribunal refused the applicant’s adjournment request, it noted that the Tribunal has an obligation to ensure an efficient, proportional and timely resolution of the merits of the proceeding.
12The Court of Appeal may or may not grant leave in Tomec. Even if it does, it may be several months before a decision one way or the other is issued. While the applicant asserts this should have no bearing on the decision to adjourn, that was not the sole reason the adjournment was denied.
13The applicant also submits that the adjudicator’s reasons denying the adjournment are insufficient and consequently amount to a breach of procedural fairness.
14That said, parties need to recognize the Tribunal has discretion to grant or deny adjournments and take into account the interests of all parties as well as the integrity of the Tribunal’s rules and process. In this case, the Tribunal was not satisfied that an adjournment of the written hearing was warranted.
15The Tribunal’s decision denying the adjournment considered the following factors:
a) prejudice to the parties,
b) consent of the other party,
c) length of the adjournment request,
d) previous delays,
e) the public interest, and
f) fair, efficient and timely conduct of proceedings.
16The Tribunal found that an adjournment would not provide for a fair, efficient and timely conduct of the proceedings. I agree.
17The Tribunal balanced the interests of fairness and expediency when considering the applicant’s request for adjournment. he Tribunal’s reasoning for denying the adjournment were clear.
18This was also the applicant’s second adjournment request. The preliminary hearing was initially scheduled to be heard on August 7, 2018. An adjournment was granted on July 26, 2018.
19I agree with the respondent that a hearing should only be delayed because a party is pursuing a civil action on similar issues in exceptional circumstances. The applicant is not pursuing a civil action in this case, he is relying on the outcome of an appeal in Tomec as a reason to postpone the hearing of this matter.
20It is not fair or practical to delay Tribunal proceedings to await potential outcomes in unrelated civil actions. Even if an appeal has some similar aspects, that does not mean they are identical.
21To adjourn or stay a matter every time there is a potential court case on a similar matter would result in significant delays for all parties and, in particular, for applicants, who are in need of benefits.
CONCLUSION
22For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
Jonathan Batty
Associate Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 11, 2019