Licence Appeal Tribunal File Number: 21-009543/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:
Adnan Yassine
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kevin Lundy
APPEARANCES:
For the Applicant:
Adnan Yassine, Applicant (Deceased)
Liam Cardill, Counsel
For the Respondent:
Krystle Brazier, Claims Representative
Mai Nguyen, Counsel
Heard by Videoconference:
July 18, 2023
OVERVIEW
1Adnan Yassine (the ‘applicant’) was involved in an automobile accident on March 10, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ‘Schedule’). The applicant was denied benefits by Economical Mutual Insurance Company (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to attendant care benefits of $5,168.66 per month from to date and ongoing?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed.
PROCEDURAL ISSUE
4Following a case conference on December 7, 2021, the Tribunal issued a case conference order and report the following day scheduling a two day videoconference hearing for December 8 and 9, 2022, commencing each day at 9:30 a.m.
5On October 5, 2022, the applicant filed a request to adjourn the hearing because the applicant recently had his capacity assessed and was deemed incapable of making decisions. As a result, the office of the Public Guardian and Trustee (‘PGT’) was reviewing the applicant’s file and the parties were awaiting determination of the PGT’s involvement. The respondent consented to the adjournment. The Tribunal granted the applicant’s request for an adjournment and set revised dates for the exchange and submission of documents.
6On March 10, 2023, applicant’s counsel filed a Notice of Motion requesting an adjournment of the hearing scheduled to take place on April 4 and April 5, 2023 because:
a. The applicant passed away on November 21, 2022 and died intestate;
b. On March 7, 2023, applicant’s counsel received instructions from the applicant’s family to commence an application to have the applicant’s niece appointed as executor for the applicant’s estate; and
c. Until an executor is appointed, applicant’s counsel cannot take instructions on behalf of the applicant’s estate.
7As a result, applicant’s counsel requested that the hearing be adjourned until an executor is appointed, or be sent back to a case conference for case management. The Tribunal granted a further adjournment subject to the following:
The hearing is adjourned to a date to be scheduled by the Tribunal. The Tribunal will contact the parties to set the date, and the hearing shall commence no earlier than July 4, 2023 and no later than August 14, 2023. The hearing is also marked peremptory on the applicant to proceed.
Except for the provisions contained in this Order, all previous orders made by the Tribunal remain in full force and effect. [Emphasis in original]
8On March 27, 2023 and April 3, 2023, the Tribunal canvassed new hearing dates with the parties. The parties were advised that if dates were provided outside of the offered timeframe, or if they failed to respond or provide mutually agreeable dates, then the Tribunal would assign a rescheduled hearing date. In response to the Tribunal’s canvassing, applicant’s counsel emailed the Tribunal on April 5, 2023 and stated that he was unavailable for the offered hearing dates and noted he was in two trials in September. As a result, the hearing was rescheduled without further input from the parties.
9On April 6, 2023, applicant’s counsel filed a Notice of Motion requesting an adjournment of the hearing scheduled to commence on July 18, 2023 because an executor had still not been appointed. As a result, he could not take instructions on behalf of the applicant’s estate. Applicant’s counsel also requested that the matter be adjourned to a case conference rather than to a new hearing date “so that a reasonable timetable can be created and monitored pending the appointment of an executor for the Applicant’s estate.” The respondent consented to the proposed adjournment.
10On May 1, 2023, the Tribunal denied the adjournment request for the following reasons:
a. Parties are expected to provide specific details and sufficient evidence in support an adjournment request, especially when the previous adjournment request was granted on a peremptory basis. While applicant’s counsel included the applicant’s death certificate and the PGT’s office correspondence declining to participate in this matter, the applicant failed to provide any details or evidence regarding the executor application. In fact, applicant’s Page 4 of 5 counsel offered no information and filed no evidence that an application has even been commenced or if any efforts had been made to expedite the appointment.
b. Five months had elapsed since the applicant has passed away and over six weeks since the last motion order was released to the parties. In his adjournment request, the applicant’s counsel did not specify any active steps taken during that period to move the matter forward to a hearing.
c. Further, applicant’s counsel failed to set out the length of the proposed hearing adjournment and instead requested that that the Tribunal schedule a further case conference. The application in this matter was filed in 2021 and as such, granting an indefinite adjournment of the hearing would only add further delay to this proceeding and would impede fair and timely access to justice.
d. Applicant’s counsel also did not establish the need for a further case conference in this matter. The Tribunal provided the parties with ample case management support throughout the lengthy history of this proceeding. The Tribunal held a case conference and considered several motions where it addressed case management matters and issued procedural orders. Applicant’s counsel requested a further case conference so that “a reasonable timetable can be created and monitored pending the appointment of an executor.” The Tribunal stated that this was not a sufficient basis for a further case conference.
11As of the present hearing date, the applicant had not filed any evidence in support of the application.
12At the start of the present hearing, applicant’s counsel described the complex and lengthy process of designating an executor from the sizable pool of the applicant’s surviving relatives. Although some progress had been made to narrow this field, no executor has been appointed and applicant’s counsel still lacked an instructing client to retain experts and conduct the hearing. As a result, applicant’s counsel reiterated his request to adjourn the hearing to complete the process of appointing an executor for the applicant’s estate. No timeline for a new hearing was proposed since the date that an executor could be appointment remains unknown. The respondent reiterated its consent to the prior adjournment motion but took no position on the present request.
13In light of the uncertainty on when an executor may be appointed, applicant’s counsel effectively requests a sine die adjournment of the hearing. While I appreciate the complexity of the task to appoint the executor, the matter was still not ready to proceed. Continued adjournment requests frustrate the Tribunal’s ability to ensure timely resolutions of the merits of proceedings as mandated by Rule 3.1(b) of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended. In addition, the present adjournment request does not substantively differ from the prior request submitted on April 6, 2023 with very little change in circumstances or a tangible timeline for readiness. I find that the issues raised in the present request were therefore addressed in the motion order dated May 1, 2023 and I find insufficient grounds to differ from that order.
ORDER
14As a result, in light of all of the circumstances, the adjournment request was denied.
15As the applicant has not filed any evidence in support of the application, I find that he has not met his evidentiary onus. As a result, the application is dismissed on a without prejudice basis. In other words, the applicant is free to commence a further application once the executor issue has been resolved.
Released: August 17, 2023
_______________________
Kevin Lundy
Adjudicator