RECONSIDERATION DECISION
Before: Ludmilla Jarda, Adjudicator
Licence Appeal Tribunal File Number: 21-008114/AABS
Case Name: Syed Iqbal Azam v. Unifund Assurance Company
Written Submissions by:
For the Applicant: Shahen A. Alexanian, Counsel
For the Respondent: Farzana Merchant, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant.
2It arises out of a motion order dated March 3, 2023 (“Motion Order”) and an amended motion order dated March 24, 2023 (“Amended Motion Order”).
3In the Motion Order, the Tribunal granted the respondent’s request to set aside the applicant’s Notice of Withdrawal and any closure letter, allowed the applicant to file written reply submissions for the written hearing, rescheduled the written hearing and the respondent’s motion hearing relating to the Notice of Motion dated January 11, 2023, closed Tribunal File Number 23-001077/AABS, and ordered the applicant to pay costs to the respondent in the amount of $1,000.00.
4On March 24, 2023, without notice to the parties, and without providing reasons, the Tribunal amended the Motion Order and released the Amended Motion Order. The Amended Motion Order denied the respondent’s request to set aside the applicant’s Notice of Withdrawal and any closure letter, vacated the written hearing as well as the respondent’s notice of motion dated January 11, 2023, closed Tribunal File Numbers 21-008114/AABS and 23-001077/AABS, and ordered the applicant to pay costs to the respondent in the amount of $1,000.00.
5The applicant did not identify the remedy or relief sought in his submissions made in support of this request for reconsideration.
6The respondent argued that the request for reconsideration should be dismissed.
RESULT
7The applicant’s request for reconsideration is granted.
ANALYSIS
8The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”). A request for reconsideration will not be granted unless one or more of the grounds are met.
9The grounds that the applicant submits apply are found in Rules 18.2(a) and (b). That is, the applicant requests a reconsideration on the basis that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness, and the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.
10The 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.
11The party requesting the reconsideration must show how or why the decision at first instance falls into one of the categories in Rule 18.2.
12For the reasons that follow, I grant the applicant’s request for reconsideration.
The Tribunal violated the rules of procedural fairness when it amended the Motion Order without notice to the parties and without providing reasons for the amendment
13As indicated above, after releasing the Motion Order, on March 24, 2023, without notice to the parties, and without providing reasons, the Tribunal amended the Motion Order and released the Amended Motion Order. As a result, neither of the applicant’s applications proceeded to a hearing on the merits and both files were closed.
14The applicant submitted that the Tribunal’s approach breached the rules of procedural fairness. I agree.
15In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 (Baker), the Supreme Court of Canada indicated at paragraph 22 that “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker”.
16Since the Tribunal did not notify the parties of its intention to amend the Motion Order, neither party had the opportunity to put forward their views and evidence and to have them considered by the Tribunal prior to the amendment. By not giving the parties the opportunity to exercise their participatory rights prior to amending the Motion Order, the Tribunal violated the rules of procedural fairness.
17In Baker, at paragraph 43, the Supreme Court of Canada also held that the duty of procedural fairness requires the provision of a written explanation for a decision. It would be unfair for a person subject to a decision not to be told why the result was reached. In this case, by not providing any reasons as to why the Motion Order was amended, the Tribunal violated the rules of procedural fairness.
18For these reasons, I find that the Tribunal violated the rules of procedural fairness when it amended the Motion Order without notice to the parties and without providing reasons for the amendment. As such, the applicant’s request for reconsideration is granted. Since I have granted the applicant’s request for reconsideration under Rule 18.2(a), I will not address the grounds raised by the applicant under Rule 18.2(b).
The Tribunal has the power to grant a remedy under Rule 18.4
19Although the applicant’s request for reconsideration is non-compliant with Rule 18.1(c) as the applicant did not include the remedy or relief sought in his submissions in support of his request for reconsideration, I find that the applicant is not barred from proceeding with his request for reconsideration as the Tribunal still has the power to grant a remedy under Rule 18.4.
20Pursuant to Rule 18.4(b), upon reconsidering a decision of the Tribunal, after providing responding parties an opportunity to make submissions, the Tribunal may (i) confirm, vary, or cancel the decision or order, or (ii) order a rehearing on all or part of the matter. If the Tribunal orders a rehearing of the matter, the Tribunal may make any order that it could make following a case conference.
21The respondent submitted that the applicant’s non-compliance violated the rules of procedural fairness, and it claimed to have been prejudiced in that they could not make any submissions in respect to the remedy or relief sought, which was unknown. I do not agree. In this case, the respondent had the opportunity to make submissions regarding the outcome of the reconsideration and exercised this participatory right by submitting that the reconsideration be dismissed.
22After the respondent identified the discrepancy in the applicant’s initial submissions, the applicant had the opportunity to file reply submissions by May 24, 2023, and as per the Motion Order released on July 27, 2023, this deadline was extended to August 15, 2023. The applicant did not file any reply submissions within the prescribed time.
23Considering the above, I am satisfied that the parties had the opportunity to inform the Tribunal of their views regarding the remedy or relief sought on this reconsideration. Nevertheless, before I make an order under Rule 18.4(b), I must consider the impact of the outcome of the Amended Motion Order reconsideration on the Motion Order.
24If the Amended Motion Order is cancelled, the Motion Order is still in effect. The Motion Order relates to file number 21-008114/AABS. However, the applicant withdrew his application for file number 21-008114/AABS by filing a Notice of Withdrawal dated January 30, 2023, which was acknowledged by the Tribunal in its closing letter dated February 6, 2023. Accordingly, as of the date the applicant withdrew his application, the Tribunal had no jurisdiction over the matter. This means that the Motion Order of March 3, 2023, which related to file number 21-008114/AABS, was made without jurisdiction, and cannot stand. Therefore, the Motion Order must also be cancelled.
ORDER
25The applicant’s request for reconsideration is granted.
26The Motion Order dated March 3, 2023 and the Amended Motion Order dated March 24, 2023 are cancelled.
27The Tribunal’s file number 21-008114/AABS is closed as of January 30, 2023, the date the applicant filed his Notice of Withdrawal.
28The applicant may proceed with the application in file number 23-001077/AABS.
29If either party wishes to bring a new motion in relation to the application in 23-001077/AABS, they may do so as set out in the Tribunal’s Rules.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 5, 2023