RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
Licence Appeal Tribunal File Number: 20-011402/AABS
Case Name: Maimuna Ali v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Kwaku Bona, Paralegal
For the Respondent: Brendan Sheehan, Counsel
Heard Via Written Submissions: February 16, 2022
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2It arises out of a decision in which the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”)1 dismissed the appeal without a hearing because it found the applicant had abandoned the proceedings.
3The issue before the Tribunal is whether it violated procedural fairness because it did not give proper notice to the applicant of its intent to dismiss the appeal without a hearing.
4The applicant is seeking an order cancelling the Tribunal’s decision and reinstating the proceedings so the applicant can participate in the case conference.
5A reconsideration decision was released on February 4, 2022. Upon receipt, counsel for the applicant advised the Tribunal that the respondent’s responding submissions were not properly served and he did not have an opportunity to reply.
6The Tribunal allowed the applicant to file reply submissions on the condition that the submissions were limited to 5 pages and would not contain any new submissions.
7Upon receipt of the reply submissions, the respondent emailed the Tribunal opposing the consideration of the additional pages above the 5-page limit and paragraphs 7, 12, 13, 15, and 16, as they contained new submissions.
8I have reviewed the applicant’s reply submissions and the respondent’s letter and I have concluded that I will accept all pages of the applicant’s reply submissions because the written portion is only 5 pages. The additional 3 pages are a title page, index page, and the signature of counsel. However, I will not consider paragraphs 12, 13, 15, and 16, as I consider them new submissions which are not appropriate for reply submissions.
RESULT
9The applicant's request for reconsideration is dismissed.
BACKGROUND
10The applicant through her representative, Murray Tkatch, counsel, filed an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act on September 29, 2020.
11A case conference was scheduled to proceed on May 31, 2021. The Notice of Case Conference was emailed to “Christie,” at the email address provided by Murray Tkatch, to Aviva, the respondent, and Brendan Sheehan, counsel for the respondent. A personal email address for the applicant was not provided by her representative. Because of the COVID-19 pandemic, it is the Tribunal’s practice to email the majority of its notices. In this case, the email stated: “Please ensure that you inform your clients about the teleconference that has been scheduled as per the attached notice.” The notice attached advised the parties about the upcoming case conference, that participation is mandatory, and that failure to attend could result in the Tribunal dismissing the application.
12The case conference took place on May 31, 2021 and the applicant failed to attend. Simmy Yu, counsel for the applicant, was present, as were a representative for Aviva and counsel for Aviva.
13At this case conference, Adjudicator Paul Gosio gave a Notice to Dismiss the application without a hearing as it appeared to him that the party filing the application abandoned the proceeding pursuant to Rule 3.4 of the Tribunal’s Common Rules of Practice and Procedure. The case conference was adjourned to August 30, 2021. The parties had until August 30, 2021 to exchange and file their written submissions with the Tribunal on the Notice to Dismiss. The case conference report was emailed to “Christie” at the same email address on record for the representative of the applicant, and to Aviva’s counsel.
14On June 2, 2021, the Tribunal emailed a Notice of Case Conference Resumption to “Christie” and Aviva’s counsel. It also advised: “Please ensure that you inform your clients about the teleconference that has been scheduled as per the attached notice.” The notice attached advised the parties about the upcoming resumption of the case conference, that participation is mandatory and that failure to attend could result in the Tribunal dismissing the application.
15August 26, 2021, Yaw Attah, another counsel representing the applicant, emailed the Tribunal their submissions on why the application should not be dismissed without a hearing. In that email, counsel was clear that his office has been unable to restore contact with the applicant and that a letter was hand-delivered to the client on that day advising them of the upcoming case conference. Attached to that letter was the Tribunal’s Notice of Case Conference.
16The case conference proceeded on August 30, 2021 before Adjudicator Gosio. The applicant did not appear. The adjudicator considered the parties’ submissions and dismissed the application without a hearing as abandoned.
ANALYSIS
17The grounds for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the criteria under Rule 18.2 are met.
18Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
19The applicant submits that the Tribunal violated procedural fairness by dismissing the application without a hearing on the basis that it did not serve the notices of case conferences and case conference reports advising her of her obligation to attend the case conference and its notice to dismiss the application.
20The respondent opposes the reconsideration request on the basis that the Tribunal served the Notices correctly as the representative for the applicant received the notices and reports.
21The applicant replied, arguing that the Statutory Powers and Procedures Act (“SPPA”) dictates that a Tribunal cannot dismiss a proceeding without giving notice and considering the submissions regarding the dismissal. The applicant relies on Khan v. Ottawa (University of)2 and Baker v. Canada (Minister of Citizenship and Immigration)3 to support her position that the Tribunal has not properly administered procedural fairness.
ANALYSIS AND CONCLUSION
22This decision concerns the issue of procedural fairness and whether the Tribunal has properly discharged its responsibility to serve notice to a party through its representative.
23The applicant is correct that the Notices of Case Conference and the Case Conference Report were not personally served on her; they were served on her representative. The Tribunal consistently reminded the applicant’s representative in the emails that it was the legal representatives’ responsibility to advise their clients about the upcoming case conferences. In supplying only a law firm email address, counsel for the applicant in essence undertook the responsibility to be a valid channel of communication for the applicant in this matter.
24Email is an acceptable form of service for documents to be served on a party pursuant to Tribunal Rule 6.1(e). This includes the notices from the Tribunal to the parties, and not merely communications between the parties themselves. That being said, I do acknowledge that the documents were not served by the Tribunal to the applicant but through her representative on August 26, 2021.
25There is no evidence before me to support applicant’s willingness to comply with Rule 14.6, nor any explanation for the applicant’s lengthy period of noncommunication with her counsel. The admission and consideration of such evidence would have to be analyzed through Rule 18.2(d). In any event, the submissions of the applicant’s representative are not evidence. This is not to say that evidence of the applicant’s willingness to participate would automatically lead to granting the request for reconsideration; it would, however, be a factor to consider in the reconsideration.
26Lastly, since the start of the pandemic on March 25, 2020, legislation was enacted to assist Tribunals and their proceedings in these unprecedented times. The Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (HITPA) applies to any hearing (which includes hearings, case management, pre-hearing conference, or alternative dispute resolution process) to which the SPPA applies. Section 3 (2) allows the Tribunal to make any orders or give any directions that it considers appropriate in respect of the format of the hearing and its conduct, any matters ancillary to holding of the hearing including the notice of a hearing and, central to this matter, attendance at the hearing. I find that the emails from the Tribunal via its case management officer directing counsel to advise his client of the impending case conference is a proper Tribunal direction and properly delivered under section 3 (2) (b) of HITPA and Tribunal Rule 6.1(e).
27Therefore, I find that proper notice was issued and the applicant had an opportunity to present submissions on whether the application should be dismissed without a hearing. The applicant’s counsel/representative was present at both case conferences and made submissions on her behalf. Those submissions were considered and it was decided that she had abandoned the proceedings. I see no error in law or denial of procedural fairness.
28I deny the applicant's request for reconsideration.
Chloe Lester Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: February 23, 2022
Footnotes
- Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)
- Khan v. Ottawa (University of), 1997 CanLII 941 (ON CA)
- Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817