Ratnarajah v. Belair Insurance, 2023 CanLII 23580

Licence Appeal Tribunal

Citation: Ratnarajah v. Belair Insurance, 2023 ONLAT 20-010201/AABS

Licence Appeal Tribunal File Number: 20-010201/AABS

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:

Rasaratnam Ratnarajah

Applicant

and

Belair Insurance

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

Francesco Vumbaca, Paralegal

For the Respondent:

Nicole A. Dowling, Counsel

Matt McDonald, Adjuster

Held by:

By way of written submissions

BACKGROUND

1This matter arises as a result of the applicant’s failure to attend three case conferences, scheduled by the Licence Appeal Tribunal (the “Tribunal”) for June 16, 2021, September 8, 2021, and July 26, 2022.

2On July 26, 2022, the applicant failed to call in for the case conference at 1 PM. His representative advised that he had been unable to get in touch with his client and requested additional time to contact the applicant. I paused the proceeding until approximately 1:30 PM, but the applicant’s representative was still unable to contact his client. The applicant’s representative then requested an adjournment, claiming that medical issues had likely caused the applicant’s non-attendance. The representative for the respondent requested that the application be dismissed as abandoned.

3I advised both parties that I would be reserving my decision of whether or not it is the Tribunal’s intent to dismiss the application as abandoned. I ended the case conference at approximately 1:35 PM.

4In the subsequent order, I put the applicant on notice of the Tribunal’s intent to dismiss this applicant as abandoned without a hearing pursuant to Rule 3.4(d) of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). I invited the parties to file written submissions, pursuant to Rule 3.5 of the Rules, and seized myself of this matter. Applicant submissions were due on August 16, 2022, respondent submissions were due on August 30, 2022, and reply submissions were due on September 13, 2022.

5The applicant filed written submissions by the date noted above. The respondent did not file written submissions by the date noted above, and did not reply to multiple requests to do so by the Tribunal. It was inadvertently discovered by the Tribunal on January 16, 2023, however, that the respondent had sent these submissions as part of another application before the Tribunal.

ISSUE

6The issue before me is:

(i) Should the applicant’s application be dismissed as abandoned due to continued non-attendance of case conferences, pursuant to Rule 3.4(d) of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”)?

RESULT

7After reviewing the applicant’s submissions and case law, and for the reasons that follow, I find that:

(i) The application is not dismissed as abandoned.

ANALYSIS AND OVERVIEW

8Rule 3.1 provides that the Tribunal facilitate a fair, open, and accessible process, allow effective participation by all parties, and ensure efficient, proportional, and timely resolution of the merits of its proceedings.

9Rule 3.4 provides that the Tribunal may dismiss an appeal without a hearing if it is found that the party filing the appeal has abandoned the proceeding.

10The applicant submits that he has no intention to abandon his application, and that he has reasonable explanations for missing all three case conferences. He has previously submitted that he missed the first two case conferences due to a family emergency and an internal issue with his legal firm’s server, respectively.

11With regard to the third missed case conference that was to take place on July 26, 2022, the applicant’s written submissions contend that he experienced a medical emergency just before the case conference, and was experiencing “pain in his chest, shortness of breath, and light-headedness.”¹ As a result of this medical issue, the applicant attended a walk-in clinic near his home on the same day as the scheduled case conference.²

12A medical note dated July 26, 2022 and signed by Dr. K. Daiter of Whitby Medical was included with the applicant’s written submissions.³ This note explained that “Ratnarajah was assessed in the office today. He missed his meeting on July 26 due to medical reasons.”⁴

13The applicant’s written submissions further claim that the applicant “is a vulnerable individual with a complicated medical history.”⁵ According to the written submissions, this medical history includes Type II diabetes, high cholesterol, high blood pressure, left-hand tremors, and fatty liver disease.⁶

14The applicant submits case law in support of his position. The applicant primarily relies upon 16-001649 v. Aviva General Insurance Company.⁷ In that matter, the applicant did not attend the hearing because she had to leave the country due to a sudden medical emergency involving an elderly relative. The adjudicator accepted that a family emergency was a valid explanation for non-attendance, and declined to dismiss the application as abandoned.⁸

15The applicant argues that his case is similar to 16-001649, but with even more factors providing grounds that the application should not be dismissed. Namely, the applicant cites that this was a case conference, not a hearing, and that the reason for non-attendance was a personal medical emergency, not an issue involving a third party. Furthermore, the applicant submits that the 16-001649 decision involved travel abroad, and the question of whether or not the applicant would return to Canada. In this matter, the applicant notes that there should be no similar concerns regarding his eventual attendance at a rescheduled case conference, as he has not left the country.⁹

16Additionally, the applicant submits that a dismissal of the application would be prejudicial for two reasons. Firstly, if the current application were to be dismissed, the applicant would not be able to re-file with the Tribunal as the two-year limitation period has expired. Secondly, a dismissal would be contrary to the consumer protection spirit and purpose of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹⁰

17The respondent did not file written submissions with the Tribunal as of the August 30, 2022 date specified in my last order. Multiple attempts by the Tribunal to contact the insurer and its representative following this deadline did not result in the filing of any written submissions, either. As noted above in paragraph #5, these submissions had in fact been submitted by the respondent, but as part of another application before the Tribunal.

18For the following reasons, I agree with the applicant and decline to dismiss the application as abandoned.

19Even though this is the third time that the applicant has not attended a case conference, this is the first time that he has not attended for medical reasons. As this explanation was accompanied by the aforementioned note from Dr. Daiter, I take this at face value, even with some lingering concerns in part motivated by the fact that this is the third case conference that the applicant has missed. (The note provided by Dr. Daiter is lacking in detail as to why the applicant visited the walk-in clinic on July 26, 2022. It does not specify the time of day that the applicant visited the clinic, leaving it an open question whether or not this visit coincided with the time of the case conference at 1 PM that afternoon.)

20I also place weight on the applicant’s argument regarding the consumer protection legislation of the Schedule, and that the Rules should be interpreted within the spirit of this mandate. I agree with the applicant that it would prohibit him from disputing his entitlement to the benefits claimed as the two-year limitation has lapsed. In my view, that would go against the purpose of consumer protection provided by the Schedule.

21I am not considerting the submissions of the respondent. Even though they were apparently submitted to the Tribunal by the deadline provided, they were not submitted properly, being sent by the respondent as part of another application. This was only discovered by accident by the Tribunal, with a staff member realizing that these submissions did not belong to the case in which it was filed on January 16, 2023. In addition, the respondent compounded its initial error by not replying to queries from the Tribunal for a month following the date when the respondent’s submissions were due. Email reminders were sent by the Tribunal to the respondent on August 31, 2022 and again on September 16, 2022. As a result, I find that the respondent’s submissions have been submitted extremely late and I do not consider them in making my decision.

22With that said, I still acknowledge how significant it is that the applicant has now missed three separate case conferences. As much as these reasons may well be legitimate, and as much as the Schedule is consumer protection legislation that should afford an applicant every reasonable opportunity to make claims for benefits, the applicant has to attend the resumption of this case conference.

ORDER

23I make the following order:

(i) The application is not dismissed as abandoned.

(ii) Within two weeks of receiving this order, the parties will provide the Tribunal with mutual dates for the scheduling of a resumption of the case conference.

(iii) The applicant’s attendance at the next case conference is peremptory. The applicant is cautioned that if he does not attend at the next case conference date, his application may be dismissed as abandoned.

(iv) I am not seized of this matter.

Footnotes

1. 1Applicant Submissions Re Notice to Dismiss, August 16, 2022, page 3.
2. 2Ibid.
3. 3A photo of this hand-written note on a medical prescription pad was filed with the Tribunal along with the written submissions.
4. 4Ibid.
5. 5Applicant Submissions Re Notice to Dismiss, August 16, 2022, page 4.
6. 6Ibid.
7. 716-001649 v. Aviva General Insurance Company, 2017 CanLII 69296 (ON LAT).
8. 8Ibid.
9. 9Applicant Submissions Re Notice to Dismiss, August 16, 2022, pages 5-6.
10. 10O. Reg. 34/10 (as amended).