RECONSIDERATION DECISION
Before: Ludmilla Jarda, Adjudicator
Licence Appeal Tribunal File Number: 19-006122/AABS
Case Name: Thavamalar Vettivelu v. Intact Insurance Company
Written Submissions by:
For the Applicant: Alexei Antonov, Counsel Francesco Vumbaca, Paralegal/Student-at-Law
For the Respondent: Andrew Franklin, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant.
2It arises out of a decision on a motion order dated December 8, 2022 (“Motion Order”) which denied the applicant’s request to adjourn a written hearing and extend the time to deliver written submissions and dismissed the applicant’s application without a hearing. The respondent’s request for costs was also denied.
3The applicant requests a reconsideration of the Motion Order on the basis that the Tribunal violated the rules of procedural fairness, and the Tribunal made an error of law and fact such that the Tribunal would likely have reached a different decision had the error not been made.
4The applicant seeks to vary the Motion Order with respect to the decision to dismiss the applicant’s appeal and to deny the applicant’s request to adjourn the written hearing and extend the deadline for written hearing submissions. Alternatively, the applicant seeks a rehearing on all or part of the matter.
5The respondent argues that the request should be denied.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The grounds for a request for reconsideration to be allowed are contained in Rule 18 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”). A request for reconsideration will not be granted unless one or more of the grounds is met.
8The grounds that the applicant submits apply in this matter are found in Rules 18.2(a) and (b). That is, the applicant requests a reconsideration on the basis that the Tribunal violated the rules of procedural fairness, and the Tribunal made an error of law and fact such that the Tribunal would likely have reached a different decision had the error not been made.
9The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision, or the weight assigned to the evidence.
10Reconsideration 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. The party requesting the reconsideration must show how or why the decision in first instance falls into one of the categories in Rule 18.2.
11For the reasons that follow, I dismiss the applicant’s request for reconsideration.
The Tribunal did not violate the rules of procedural fairness when it dismissed the applicant’s application without a hearing
12For the following reasons, I find that the Tribunal did not violate the rules of procedural fairness in exercising its power to dismiss the applicant’s application without a hearing.
13The applicant submitted that the Tribunal violated the rules of procedural fairness by dismissing the appeal without a hearing pursuant to Rule 3.4. The applicant argued that contrary to Rule 3.5 and section 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), the Tribunal did not provide any notice of its intention to dismiss the application with the reasons for its intention to dismiss, nor did the Tribunal provide notice informing the parties of their right to make written submissions to the Tribunal with respect to the dismissal within a specified time.
14The applicant relied on Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 (Baker). The applicant argued that the Tribunal violated the principle that the applicant should have the opportunity to present her case fully and fairly, and have the decision affecting her rights, interest, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.
15The applicant further submitted that the dismissal of her application without a hearing was contrary to the consumer protection purpose and spirit of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) and its related statutes and regulations.
16I do not agree with the applicant’s submissions and find no violation of the rules of procedural fairness.
17First, as stated at subparagraphs 20(a)-(c), (h), and (i) of the Motion Order, the Tribunal may dismiss the application without a hearing if the applicant is found to have abandoned the proceedings. When an applicant fails to file written submissions and evidence for a written hearing, the application may be deemed abandoned. In this case, the applicant was ordered by the Tribunal to serve and file her written submissions and evidence by no later than October 19, 2022. By failing to provide written submissions and evidence as ordered by the Tribunal, the Tribunal found the applicant failed to discharge her burden to establish entitlement to the benefits claimed in the application. As such, she was deemed to have abandoned her application.
18Second, I find that in accordance with Rule 3.5 and section 4.6 of the SPPA, the Tribunal (i) gave the parties notice of its intention to dismiss the application; (ii) provided the reasons for its intention to dismiss the application; (iii) informed the parties of their right to make written submissions to the Tribunal within the time limits set out in the notice, which was at least 5 days as required by Rule 3.5; and (iv) considered the written submissions provided.
19Third, it is well established that procedural fairness requires that a party have an opportunity to be heard and an opportunity to respond to the position taken against them Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986 at para [8]]. This ensures that the parties understand the case they must meet, and that the parties have the opportunity to be heard and to respond accordingly Iqbal v. Gore Mutual Insurance Company, 2021 CanLII 64248 (ON LAT) at para [12]].
20As per paragraphs 14-16 as well as subparagraphs 20(d)-(g) of the Motion Order, the applicant knew the respondent’s position regarding the proposed dismissal without a hearing, and she knew the case to meet. The applicant submitted written responding submissions on November 10, 2022 and made oral submissions at the motion hearing on November 18, 2022. Therefore, I find the applicant had a full opportunity to respond to the respondent’s motion and to argue her case.
21Finally, in Baker, the Supreme Court of Canada held at paragraph 34, “[t]he opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case”.
22As per paragraphs 8 and 9 of the Motion Order, the applicant was accorded participatory rights to a written hearing on the merits of his application consistent with the duty of procedural fairness. Indeed, the applicant had the opportunity to be heard on the merits of his application by filing his written submissions and evidence by October 19, 2022. It cannot be said that there is a breach of procedural fairness when the applicant fails to exercise his participatory rights in accordance with the Tribunal’s Order. Accordingly, I further find that the applicant had a full opportunity to argue his application on its merits and by not delivering his written submissions and evidence by October 19, 2022, he did not exercise his participatory rights.
23For these reasons, I find no violation of procedural fairness was made when the Tribunal dismissed the applicant’s application without a hearing. As such, a reconsideration of the Motion Order under Rule 18.2(a) is denied.
The Tribunal did not make an error of law and fact by refusing to grant the applicant’s request to adjourn the written hearing and extend the time to deliver written submissions
24I further find that the Tribunal did not make an error of law or fact in refusing to grant the applicant’s request to adjourn the written hearing and extend the time to deliver written submissions.
25The applicant submitted that the Tribunal’s discretion to grant adjournments must be exercised in keeping with section 21 of the SPPA and Rule 16. The applicant submitted that the applicable standard in section 21 of the SPPA is “whether the adjournment is required to permit an adequate hearing to be held”. The applicant argued that the Tribunal erred by failing to consider whether the adjournment was required to permit an adequate hearing to be held.
26The applicant further submitted that the Tribunal erred by not considering its duty to hear and resolve proceedings on their merits and indicated that the applicant has the right to a fair hearing on the merits.
27The applicant also submitted that the Tribunal erred by not considering the balance of Rule 3.1, which provides that the Tribunal shall facilitate a fair, open, and accessible process to allow effective participation by all parties as well as ensure consistency with governing legislation and regulations.
28Finally, the applicant claimed that the facts and circumstances in this case were virtually identical to Davis v. Aviva Insurance Company, 20-007488/AABS (“Davis”), save for the fact that the applicant in this case had already filed her written submissions before requesting the adjournment, which should be considered as a mitigating factor supporting her request for an adjournment.
29I do not agree with the applicant’s submissions and find no error of law or fact for the following reasons.
30The Tribunal provided fulsome reasons for denying the applicant’s request to adjourn the written hearing and extend the time to deliver written submissions at paragraphs 18 and 19 of the Motion Order. In doing so, the Tribunal noted that minimizing adjournments is important to the effective administration of the Tribunal. At subparagraph 18(c) of the Motion Order, the Tribunal noted that the application was filed in 2019, it was the applicant’s third request to adjourn the hearing, and at the time of the Motion Hearing, the application was 1,277 days old.
31Section 21 of the SPPA provides that a hearing may be adjourned from time to time by the Tribunal of its own motion or where it is shown to the satisfaction of the Tribunal that the adjournment is required to permit an adequate hearing to be held. The language in this section is permissive and provides the Tribunal with a wide discretion to grant or deny adjournments. Further, as noted at subparagraph 18(a) of the Motion Order, it is well settled that the Tribunal is entitled to control its own procedure and is entitled to deference on matters requiring the exercise of discretion, such as scheduling and adjournment requests.
32I also find no error as the dismissal in this case was consistent with Rule 3.4. Furthermore, as noted at subparagraphs 18(b)-(g) of the Motion Order, other factors were considered. Taking into account all of the circumstances, I was not prepared to exercise my discretion in granting the applicant’s request for an adjournment. This is not an error of law or fact.
33I also do not agree with the applicant’s argument with respect to the decision in Davis. First, the applicant did not rely on Davis at first instance, and I find she is attempting to re-litigate her adjournment request on reconsideration. Second, the Davis decision is distinguishable to the case at hand. Third, I am not bound by Davis.
34For the reasons set out above, I find that the Tribunal did not make an error of law or fact in denying the applicant’s request to adjourn the written hearing and extend the time to deliver written submissions. I further find that the applicant is attempting to re-litigate her motion. The fact that the applicant does not agree with the Tribunal’s decision is not ground for reconsideration under Rule 18.2(b).
The Tribunal did not make an error of law and fact by finding that the applicant abandoned her application
35I also find that the Tribunal appropriately dismissed the applicant’s application without a hearing, and the Tribunal did not make an error of law or fact in finding that the applicant had abandoned her application.
36The applicant denied that she abandoned her application and reiterated that she delivered her written hearing submissions on November 10, 2022. The applicant submitted that the fact that she served her written hearing submissions late and sought an adjournment is evidence that she did not abandon her application. She indicated that the Tribunal erred by misinterpreting the meaning of the word “abandoned” in Rule 3.4. Further, the applicant claimed that there was a difference between filing the written submissions late but before the written hearing, and not filing the written submissions at all. Although the applicant acknowledged that an application is deemed abandoned when the applicant fails to file written submissions and evidence for a written hearing, the applicant took issue with the fact that the Tribunal specifically indicated at subparagraph 20(i) of the Motion Order that the applicant abandoned her application “when she failed to serve and file her written submissions and evidence by the October 19, 2022 deadline, as ordered by the Tribunal.”
37I do not agree with the applicant’s submissions and find that she has not established grounds for reconsideration under Rule 18.2(b) for the following reasons.
38The Tribunal provided fulsome reasons for dismissing the applicant’s application without a hearing on the basis that she abandoned the proceedings at paragraph 20 of the Motion Order. I see no error of law or fact in the Tribunal’s analysis.
39The applicant was ordered by the Tribunal to deliver her written hearing submissions by no later than October 19, 2022, and she failed to do so. In fact, she did not file them until after the respondent filed a Notice of Motion for an order dismissing the application as abandoned on November 2, 2022. As noted at paragraph 19 of the Motion Order, although the Tribunal had the discretionary power to extend the time to deliver written submissions, I found it would have been procedurally unfair to grant the extension in the circumstances. I find the Tribunal did not make an error of law or fact in refusing to exercise its discretion to extend the time to deliver written submissions following the applicant’s breach of a Tribunal order.
40The applicant also directed the Tribunal to a definition of the word “abandoned” and claimed that the Tribunal did not properly interpret the meaning of this word as set out in Rule 3.4. For the reasons that follow, I find that the applicant has not established that the Tribunal made an error of law or fact in this regard.
41The applicant did not make any submissions on the statutory interpretation of the word “abandoned” as set out in Rule 3.4(d) at first instance. As such, I find that the applicant is attempting to re-litigate the Tribunal’s finding that she abandoned her application.
42Additionally, I find no error under Rule 18.2(b) in the Tribunal’s decision to dismiss the application as abandoned pursuant to Rule 3.4. By failing to deliver her written hearing submissions and evidence as ordered by the Tribunal, the applicant failed to meet her onus and establish that her injuries fell outside the Minor Injury Guideline and that she was entitled to the disputed benefits. Therefore, there was no case to meet.
43For the above reasons, I find that the Tribunal did not make an error of law or fact in finding that the applicant had abandoned her application and by dismissing the application without a hearing pursuant to Rule 3.4. As such, the applicant has not established that the Tribunal made an error under Rule 18.2(b).
CONCLUSION
44For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 31, 2023