Potter v. Heartland Farm Mutual Inc.
RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 21-009580/AABS
Case Name: Joseph Potter v. Heartland Farm Mutual Inc.
Written Submissions by:
For the Applicant: Sundeep Singh, Counsel
For the Respondent: Mini Kohli, Counsel
BACKGROUND
1The applicant is seeking a reconsideration of the Tribunal’s Case Conference Report and Order (“CCRO”) released on December 14, 2022. The CCRO indicates that the applicant withdrew his application for benefits during the case conference on October 28, 2022. The applicant’s Tribunal file was closed as a result.
2The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
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;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
3The applicant is seeking a reconsideration pursuant to Rule 18.2(a). The applicant is asking the Tribunal to allow the applicant to proceed with his application.
RESULT
4The applicant's request for reconsideration is granted.
ANALYSIS
5The test to be met on a request for reconsideration under Rule 18.2(a) is whether the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. The applicant submits that the Tribunal violated the rules of procedural fairness during the case conference by conferring with the respondent when the applicant’s counsel was not on the call, denying the applicant an opportunity to speak, and compelling the applicant to withdraw his application when he asked to add new issues in dispute. In support of his request for reconsideration, the applicant has provided an affidavit outlining his recollection of events at the case conference.
6The respondent argues that the applicant withdrew his application at the case conference, and that he should have brought a motion to request the application be reinstated, not a request for reconsideration. The respondent submits that a reconsideration is not contemplated by the Rules in the case of a withdrawal. The respondent denies improper communication with the adjudicator in the absence of the applicant’s counsel. It submits that the applicant and his counsel were not prepared for the case conference and his counsel lacked instructions to move the application to a hearing. In support of its position, the respondent has submitted an affidavit by Nazira Mohamed, Senior Accident Benefits Claims Representative, who attended the case conference on behalf of the respondent.
7I grant the applicant’s request for reconsideration for the following reasons. I find that the December 14, 2022 CCRO closing the Tribunal’s file is a decision that finally disposes of an appeal under Rule 18.1, and is therefore properly the subject of a request for reconsideration. I also find the Tribunal violated the rules of procedural fairness during the October 28, 2022 case conference.
8I find the affidavits of the applicant and the respondent both indicate the applicant was seeking to add issues to his application, and that the adjudicator advised the applicant that there was not enough time to add the additional issues at the case conference, and he needed to withdraw his application and reapply to the Tribunal. The applicant submits that he felt compelled to drop his application by the adjudicator. This is supported by the respondent’s affidavit which indicates that following “a number of arguments made to the adjudicator by the parties regarding the adding of issues to the Application, the adjudicator advised that the Applicant would need to withdraw the Application and reapply.” It is a violation of procedural fairness for the Tribunal to advise the applicant that he should withdraw his application and then issue a CCRO that indicates he has done so. It is solely the applicant’s choice whether or not to pursue his application with the Tribunal.
9Even if I am wrong about the applicability of Rule 18.1, I find that section 23(1) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 allows the Tribunal to make orders it considers proper to prevent an abuse of its process. In these circumstances, I am satisfied that disallowing the application from proceeding constitutes an abuse of process; accordingly, ordering this application to proceed prevents an abuse of the Tribunal’s process.
10The applicant has also raised the issue that one of the denials on his application is dated November 5, 2020, which means the two-year limit for filing an application with the Tribunal has now passed. The applicant further submits that one of the ten additional issues listed in his case conference summary, which he was seeking to add to his application, also falls outside the two-year limitation period. The applicant requests that the Tribunal allow the five issues on his original application, along with ten additional issues listed in his case conference summary, to proceed. In the alternative, the applicant asks that the Tribunal allow the original application, which listed five issues in dispute, to proceed.
11I allow the applicant’s original application dated August 5, 2021 listing five issues to proceed. In doing so, I note the applicant has had the opportunity to file a separate application with the Tribunal with respect to the additional ten issues listed on his case conference summary, but, to date, he has chosen not to do so.
ORDER
12The applicant’s request for reconsideration is granted. The applicant’s application to the Tribunal dated August 5, 2021 listing five issues in dispute is allowed to proceed.
13The Tribunal shall schedule a case conference within 30 days of the release of this decision with respect to the August 5, 2021 application.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: March 13, 2023