Fadumo Aden v. BelairDirect, 2023 CanLII 72612

RECONSIDERATION DECISION

Citation: Aden v. BelairDirect, 2023 ONLAT 20-011400/AABS - R

Before: Adjudicator Matthew Frontini

Licence Appeal Tribunal File Number: 20-011400/AABS

Case Name: Fadumo Aden v. BelairDirect

Written Submissions by:

For the Applicant: Murray Tkatch, Counsel

For the Respondent: Erica Lewin, Counsel

OVERVIEW

1The Applicant is seeking reconsideration of the Tribunal’s Order, dated February 15, 2023, which dismissed the application without a hearing pursuant to Rules 3.4 and 3.5 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”). Specifically, the application was dismissed without a hearing on the basis that the Applicant had abandoned the proceeding pursuant to Rule 3.4(d).

2The Applicant submits that the Tribunal breached procedural fairness and has made errors of fact and law in dismissing the application warranting reconsideration under Rule 18.

3The Applicant is seeking an order cancelling the Tribunal’s decision and reinstating the proceedings so the Applicant can participate in a future case conference.

RESULT

4The Applicant's request for reconsideration is dismissed. The Applicant has not established grounds for reconsideration pursuant to Rule 18.2.

BACKGROUND

5The 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 10, 2020. The application indicates the preferred method of communication by email and only provided Mr. Tkatch’s email address.

The First Case Conference

6A Notice of Case Conference and Notice of Rescheduled Case Conference was sent to the respondent and to the Applicant’s counsel, Murray Tkatch. The Applicant filed a Case Conference Summary Form dated April 19, 2021, in advance of the case conference scheduled for April 27, 2021.

7The Applicant and their counsel attended the April 27, 2021 case conference. However, because an Adjudicator did not arrive to conduct the case conference, it was adjourned. The parties, through their counsel, corresponded with Tribunal with regards to availability for a resumption of the case conference.

The Applicant Fails to Attend the Resumption of the Case Conference

8On August 3, 2022, the Tribunal emailed the respondent and the Applicant’s counsel, enclosing a Notice of Case Conference scheduling a resumption of the case conference on November 14, 2022. The email advised, “Please ensure that you inform your clients about the teleconference that has been scheduled as per the attached notice”.

9The Applicant did not attend the resumption of the case conference on November 14, 2022. As the Applicant’s participation is mandatory pursuant to Rule 14.6, in an order released on December 2, 2022 and sent to the email address provided by the applicant, the Tribunal ordered a resumption of the case conference and put the Applicant on notice of the Tribunal’s intention to dismiss the application as abandoned without a hearing if the Applicant did not attend the resumption of case conference. The Applicant was also advised that under Rule 3.5, the parties had the right to make written submissions on the Tribunal’s intention to dismiss the Applicant’s appeal without a hearing, and that the submissions were due at least 1 business day prior to the resumption.

The Applicant Fails to Attend the Second Scheduled Resumption of the Case Conference

10A Notice of Case Conference dated December 9, 2022, to the Applicant’s counsel as well as the Respondent, advising of the resumption of the case conference on February 9, 2023.

11The Applicant did not file written submissions regarding the Applicant’s failure to attend the November 14, 2022 case conference or regarding the Applicant’s attendance at the February 9, 2023 case conference.

12The Applicant and the Applicant’s counsel failed to attend the case conference on February 9, 2023, the second failed attendance in a row. The Respondent and Respondent’s counsel were present. In view of the Tribunal’s Notice of Intention to Dismiss contained in the Tribunal’s Decision 2, 2022 order, I dismissed the application as abandoned and advised the Respondent that a written order would follow.

13After the application had been dismissed but before my order was released, the Applicant’s counsel wrote to the Tribunal. He admitted that he had improperly diarized the date of the case conference and requested another case conference. The case management officer responded, as will be discussed in more detail below.

The Respondent’s Motion to Exclude the Applicant’s Reply Submissions

14The Respondent brought a motion to exclude portions of the Applicant’s reconsideration reply submissions on the basis that they constituted improper reply. These submissions generally relate to portions of the Tribunal’s website describing the role and powers of the case management officers.

15While the topic of the case management officer and her statements was raised by the Applicant in her initial submissions, I find that the applicant’s reply does not raise new evidence. Rather they relate to the jurisdiction and procedures of the Tribunal, which the Tribunal has knowledge of. There is also no prejudice to the Respondent by these submissions as the Tribunal is bound to follow its own procedures.

16As such, I dismiss the respondent’s motion and have considered the entirety of the Applicant’s submissions and reply submissions in rendering this reconsideration decision.

ANALYSIS

17Reconsideration is only warranted in cases where an adjudicator has violated a party’s right to fair and just treatment, 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.

18The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. The Applicant is requesting a reconsideration on the following grounds:

a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness; and

b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

19The Applicant argues that reconsideration is warranted in this case because:

a. The Tribunal breached procedural fairness by failing to give effect to the Applicant’s legitimate expectation that she would be provided with a hearing on the basis of an alleged promise by a Tribunal case management officer.

b. The Tribunal made a significant error of law such that the Tribunal would have likely reached a different decision by failing to follow the requirements of s. 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) prior to dismissing the application.

c. The Tribunal made a significant error of fact such that the Tribunal would have likely reached a different decision had the error not been made.

The Tribunal Did Not Violate the Rules of Procedural Fairness

20The Applicant asserts that she has been denied procedural fairness because a statement by a case management officer in an email created a legitimate expectation that the case conference would be rescheduled.

21The doctrine of legitimate expectations arises when a decision maker’s or some other relevant actor’s conduct provides a clear, unambiguous and unqualified assurance that certain procedures would be followed.

22The Applicant relied upon the Supreme Court of Canada’s decision in Baker v. Canada (Ministry of Citizenship and Immigration) (Baker)¹ and Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36² to support her position that there was a breach of procedural fairness. In Baker, the Supreme Court held, “if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.”³

23The Supreme Court of Canada has described the certainty for a representation to give rise to a legitimate expectation by analogy to the contract law. For a representation to be sufficiently clear, unambiguous and unqualified to give rise to a legitimate expectation, it must be sufficiently certain to be capable of enforcement if it had been made in a private law contract.

24The Applicant asserts that the following statement in an email by a Case Management Officer gave rise to a legitimate expectation that the Applicant would receive another case conference:

Your file’s status is already “ready schedule” hence you should be getting another case conference.

25This statement clearly fails that test of having the requisite certainty that would give rise to an enforceable contractual promise in the private law context. The Respondent asserts that this statement was not a promise. Rather it was the statement of an employee reviewing the status of the file in the Tribunal’s system and advising what the employee believed “should” happen based on limited information. I agree with the Respondent’s submissions on this point.

26Moreover, this vague statement could not give rise to a legitimately held expectation given the clear representation to the contrary in the Tribunal’s December 2, 2022 Order:

5The Applicant is put on notice of the Tribunal’s intention to dismiss this application as abandoned without a hearing if the Applicant does not attend the resumption of the case conference.

27The Tribunal’s Order regarding the Tribunal’s intention to dismiss is the type of clear, unambiguous and unqualified representation that gives rise to legitimate expectations. The only reasonable expectation that the Applicant could have upon learning that she had missed the proper date of resumption because of her representative’s administrative error was that her application had been dismissed in accordance with the notice provided in the Tribunal’s December 2, 2022 Order.

28In any event, there has been no breach of procedural fairness, which has been defined as including the following:

I. Ensuring that parties understand the case they must meet; and

II. Ensuring that the parties have an opportunity to be heard to allow them to respond accordingly.

29The Applicant knew the case she had to meet – she needed to attend to the resumption of the case conference, or her application would be dismissed as abandoned. This was clear from the Tribunal’s December 2, 2022 Order.

30The Applicant was also provided with ample opportunity to provide written submissions in respect of the Tribunal’s intention to dismiss the application if she did not attend the resumption. The Applicant chose not to file any submissions.

31The Applicant knew, prior to her representative contacting the Tribunal, that because she did not attend the resumption of the case conference and did not file any submissions, her application would be dismissed. That dismissal occurred before any representation was made by the Case Management Officer.

32As the Applicant did not have a valid legitimate expectation, there was no breach of procedural fairness in dismissing the application in accordance with the clear notice that had previously been provided to the Applicant.

The Tribunal Did Not Make an Error of Law

33The Applicant also asserts that a fundamental error of law was made in that the Tribunal did not follow ss. 4.6(2)(b) of the SPPA because it failed to provide notice to the Applicant of any step in the proceeding, including the Notice of Case conference providing notice of the date of the case conference which led to the dismissal of the application.

34The Applicant’s position rests on the incorrect premise that the SPPA does not authorize the Tribunal to serve notices or any document on anyone other than the party in order to effect proper notice, including that party’s chosen legal representative.

35This argument does not accord with the principles of statutory interpretation and the structure of the SPPA. When the Legislature intends that a document or any other thing be served on an individual, and not an authorized representative, it will require such a document or thing to be personally served. The relevant statutory language will indicate the Legislature’s intention regarding personal service and is found in many Acts.

36This is obvious from the SPPA itself, which, for example, requires summons to witnesses to be personally served by explicitly saying so in section 11(3):

(3) The summons shall be served personally on the person summoned.

37Absent this requirement, it is trite law that a party is served with a document or thing when it has been validly served on their counsel. It is their counsel’s professional duty acting as fiduciary to their client to properly provide notice to their client of documents being served on their client.

38Here the Applicant seeks to rewrite the language of the SPPA to add the requirement that the Applicant be personally served. Section 6(1) of the SPPA merely requires the Tribunal to provide parties to a proceeding with “reasonable notice”.

39In this case, counsel for the Applicant has admitted that all notices for the proceeding were received. Counsel also candidly admits that he improperly diarized the date of the case conference. The Applicant’s arguments regarding notice amount to placing the responsibility for the Applicant’s counsel’s mistake on the Tribunal.

40The Applicant had notice of every step in this proceeding. The mistakes of the Applicant’s counsel are not grounds for reconsideration.

The Tribunal Did Not Make a Significant Error of Fact

41The Applicant has identified an error of fact in my order in which I wrote that the Applicant failed to attend the April 27, 2021, case conference. The Applicant asserts that I clearly relied on this error in dismissing her application as abandoned.

42For an error of fact or law to give rise to reconsideration, the error must be such that the Tribunal would likely have reached a different result had there been no error.

43The erroneous reference to the Applicant not attending the April 27, 2021 case conference is not a sufficiently significant error that would likely have changed the result if it had not been made.

44It is undisputed that the Applicant failed to attend the November 14, 2022 resumption of the case conference or that the Applicant had clear, unequivocal notice of the Tribunal’s intention to dismiss the application if she did not attend the next scheduled resumption of the case conference. The Applicant did not attend the next case conference and as my Order accurately states, I dismissed the application on the basis that the Applicant had missed “two case conferences in a row.”

45The Tribunal did not make an error of fact that gives rise to reconsideration.

CONCLUSION

46For the reasons noted above, I deny the Applicant's request for reconsideration. The request for reconsideration is dismissed.

Footnotes

1. 11999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
2. 22013 SCC 36.
3. 3Baker, supra at para 26.