Release date: 03/25/2021
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:
Olga Hart-Plunkett
Applicant
and
Wawanesa Insurance
Respondent
ORDER
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
OVERVIEW
1The applicant was involved in an automobile accident on September 25, 2017, and sought a catastrophic assessment from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Wawanesa denied the claim and the applicant applied to the Tribunal for resolution of the dispute.
2A case conference was held on May 21, 2020. All parties attended. A written hearing was set down for October 26, 2020, with a deadline for productions scheduled for August 31, 2020. The applicant’s submissions and evidence were to be submitted by September 28, 2020.
3However, the applicant failed to meet either deadline and, to date, has not filed written submissions or presented a case. On October 6, 2020, Wawanesa contacted the Tribunal to advise that it had not received the applicant’s productions or her written materials. Wawanesa further advised that it had not received any correspondence from the applicant regarding her claim. On October 7, 2020, Wawanesa requested a closure letter on the basis that the applicant’s application had been abandoned. Wawanesa followed up on its request on December 17, 2020 and on January 8, 2021. Calls to the applicant and her counsel for clarification went unanswered. Voicemails were not returned.
4As the applicant had not presented a case, the Tribunal was prepared to dismiss the application as abandoned pursuant to Rule 3.4 of the Tribunal’s Common Rules of Practice and Procedure. However, on January 12, 2021, the Tribunal received correspondence from applicant’s counsel’s law clerk. The email stated the following: “Please advise this file is still open. We had case conference on May 21, 2020 and we were supposed to have a resumption conference call but it never happened. Thank you and I look forward hearing from you.” [sic].
5The Tribunal has no record of a purported case conference resumption. Indeed, there is only the Case Conference Report and Order dated June 1, 2020 that scheduled the written hearing. The Report and Order makes no reference to a resumption and there is no correspondence between the parties or with the Tribunal that indicates a resumption was required. Further, the law clerk’s email of January 12, 2021 was the first correspondence the Tribunal and Wawanesa received from the applicant or her counsel since the case conference was conducted on May 21, 2020. As no case was presented, the Tribunal was again prepared to dismiss the application as abandoned.
Counsel of Record - Trusteeship
6However, the matter was complicated further when the Tribunal became aware that the applicant’s counsel of record is deceased. According to the Law Society of Ontario website, it has recently been appointed “by an order of the Superior Court of Justice as trustee of the professional business or a portion thereof” of the applicant’s now-former counsel of record.
7As there has been no correspondence from the applicant herself, the Tribunal is unclear if the applicant has truly abandoned her claim, if she is aware of the proceedings or her deadlines for submission or if she even has knowledge of her counsel’s passing. Further, given the stakes of the applicant’s claim—$14,694.50 in catastrophic determination assessments, plus interest—it would be inappropriate to dismiss her application as abandoned at this stage and under these circumstances without more information.
8Accordingly, given these unique circumstances, a resumption is required to afford the applicant the opportunity to participate and to provide the Tribunal with clarity. Rule 3.1 of the Common Rules provides for a fair, open and accessible process and to allow for effective participation by all parties, whether they are self-represented or have a representative. In the interest of fairness and based on the fact that the files of the applicant’s counsel of record are now in active trusteeship with the Law Society, the Tribunal is prepared to provide the applicant with an extended notice period of six weeks from the date of this Order.
RESUMPTION
9The parties shall convene for a resumption on May 13, 2021 at 11am to discuss the status of this application and how to proceed. The Tribunal will provide the parties with a formal Notice confirming the details. I am not seized of the resumption.
10Further, Rule 3.4(d) of the Common Rules provides that the Tribunal may dismiss an appeal without a hearing if the applicant is found to have abandoned the proceeding. Rule 3.5 provides that before dismissing an appeal, the Tribunal shall give the parties notice of its intention to dismiss, provide the reasons for same, inform the parties of their right to make submissions and to consider any written submissions provided.
11Therefore, the applicant shall provide written submissions regarding the Tribunal’s intention to dismiss her application without a hearing, pursuant to Rule 3.5(c). Submissions should not exceed three (3) pages in length and shall be submitted to the Tribunal and Wawanesa by 11am on May 12, 2021.
12The applicant is put on notice that if she fails to provide written submissions or attend the resumption, her application will be dismissed as abandoned at the resumption.
ISSUES IN DISPUTE
13The issues in dispute were identified as follows:
a. Is the applicant entitled to $14,694.50 for catastrophic determination assessments recommended in by ARCG in a treatment plan (OCF-18) dated October 10, 2019??
b. Is the applicant entitled to interest on any overdue payment of benefits?
ORDER
14The applicant shall provide written submissions regarding the Tribunal’s intention to dismiss her application without a hearing, pursuant to Rule 3.5(c). Submissions should not exceed three (3) pages in length and shall be submitted to the Tribunal and Wawanesa by 11am on May 12, 2021.
15The parties shall attend a resumption on May 13, 2021 at 11am.
16If the applicant does not provide written submissions and fails to attend the resumption, her application will be dismissed as abandoned.
Released: March 25, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.