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
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2It arises out of a decision in which the Tribunal 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 on its intent to dismiss the appeal without a hearing.
4The applicant is seeking an order canceling the Tribunal’s decision and reinstating the proceedings so the applicant can participate in the case conference.
RESULT
5The applicant's request for reconsideration is dismissed.
BACKGROUND
6The 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.
7A case conference was scheduled to proceed on May 31, 2021. The Notice of Case Conference was emailed to “Christie”, the email address provided by Murray Tkatch, to Aviva, the respondent, and Brendan Sheehan, counsel for the respondent. The applicant’s email address was not provided by her representative. Because of the COVID-19 pandemic, the Tribunal emails most 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.
8The 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.
9During this case conference, Adjudicator Paul Gosio gave 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 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”, and to Aviva’s counsel.
10On 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.
11August 26, 2021, Yaw Attah, another counsel representing the applicant, emailed the Tribunal its 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.
12The 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
13The 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 following criteria are met under Rule 18.2.
14Reconsideration 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.
15The applicant submits that the Tribunal violated procedural fairness because 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.
16The 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.
ANALYSIS AND CONCLUSION
17The 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 undertook the responsibility to be a valid channel of communication for the applicant in this matter.
18Email is an acceptable form of service for documents to be served on a party pursuant to the Tribunal’s Rules of Practice and Procedure, Rule 6.1(e). This includes the notices from the Tribunal to the parties, and not merely communications between the parties themselves.
19There is no evidence before me about the applicant’s willingness to comply with Rule 14.6, nor any explanation of 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 such evidence would automatically lead to granting the request for reconsideration; it would, however, be a factor.
20I deny the Applicant's request for reconsideration.
Chloe Lester Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: February 4, 2022