RECONSIDERATION DECISION
Before:
Amanda Marshall
Licence Appeal Tribunal File Number:
21-011199/AABS
Case Name:
Ali Basra v Wawanesa Insurance
Written Submissions by:
For the Applicant:
Jono Schneider, Counsel
For the Respondent:
None received
BACKGROUND
1On November 4, 2022, the applicant requested reconsideration of the Tribunal’s decision that was released to the parties on October 3, 2022 (“decision”).
2The reconsideration arises out of the decision in which the Tribunal dismissed the appeal without a hearing because it found the applicant had abandoned the proceedings.
3The issue before the Tribunal is whether it violated procedural fairness because it did not give proper notice to the applicant of its intention to dismiss the appeal without a hearing.
4The applicant is seeking an order canceling the Tribunal’s decision and reinstating the proceedings so the applicant can participate in the case conference.
RESULT
5The applicant's request for reconsideration is granted.
BACKGROUND
6The applicant, through his representative, filed an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act on September 14, 2021.
7A case conference took place on July 13, 2022, and the applicant failed to attend. Counsel for the applicant was present, as were the respondent and counsel for the respondent.
8Applicant’s counsel attempted to reach the applicant and found that the applicant was unable to attend the case conference as his appearance was required in another court matter.
9Adjudicator Claudette Leslie put the applicant on Notice to Dismiss the application without a hearing and adjourned the case conference. She ordered that the resumption of the case conference take place within 45 days as outlined in the Case Conference Report and Order (“CCRO”) of July 29, 2022.
10The Tribunal contacted the parties via email on August 10, 2022 and provided a series of dates for the parties to choose from for the case conference resumption. The Tribunal asked the parties to select three agreed upon dates from the list. If they were not able to find dates or failed to reply by August 19, 2022, the Tribunal would assign the date.
11The Tribunal contacted the parties on August 16, 2022, and again asked for the parties to choose dates and reply by August 19, 2022.
12On August 23, 2022, the Tribunal issued a Notice of Case Conference informing the parties that the resumption would take place September 6, 2022.
13The respondent’s counsel and the respondent were in attendance for the case conference resumption on September 6, 2022. Neither the applicant nor the applicant’s counsel appeared.
14The Tribunal and the respondent’s counsel made attempts to contact the applicant’s counsel but were unsuccessful.
15As the adjudicator, I dismissed the application without a hearing based on abandonment.
ANALYSIS
16The 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 (“Common Rules”).1 To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
17The applicant is seeking a reconsideration pursuant to Rule 18.2 (a), (b), (c), or (d).
18Applicant’s counsel submits that he was on vacation when Tribunal sent requests to schedule the case conference resumption. As there was no response from his office, the Tribunal unilaterally scheduled the case conference resumption. Applicant’s counsel acknowledged his office received the notices; however, he was unaware of the resumption date as his assistant was away when the notices came in, and therefore, the date did not get put into his calendar. He also confirmed he received calls and emails on September 6, 2022 from the Tribunal and the respondent’s counsel but was attending to a different matter at that time and was not able to attend the case conference.
19The applicant points out that he attended the requested insurer examinations and has incurred the treatment plans in dispute. As the consequences for the dismissal are such that the applicant is not able to reapply as the time limitation period has passed, the applicant argues the dismissal is disproportionate and inconsistent with broader institutional and public interests.
20The respondent was notified of the applicant’s reconsideration request and was given until December 16, 2022 to make submissions. None were received by the due date.
21Reconsideration 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.
22While the applicant has requested a reconsideration under all four criteria, I find his submissions provided do not specifically address 18.2 (b), (c), or (d). Therefore, I will review the request for reconsideration under 18.2 (a).
23For a reconsideration to be successful under Rule 18.2(a), I must find that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.
24The Tribunal gets its power to determine its own procedures and practices under s. 25.0.1 of the Statutory Powers Procedure Act (“SPPA”). Through its power, the Tribunal developed the Common Rules. The Common Rules should be read and understood together with the SPPA.
25S. 6 (1) of the SPPA states that parties to a proceeding shall be given reasonable notice of the hearing by the Tribunal. There is nothing in the SPPA or the Common Rules that states that the Tribunal is not able to choose dates for its proceedings.
26Applicant’s counsel attended the case conference of July 13, 2022. In the CCRO of July 29, 2022, Adjudicator Leslie ordered that the resumption of the case conference take place within 45 days. The CCRO was sent to the applicant’s counsel, the respondent, and the respondent’s counsel by email the same day. I note that the Tribunal sent an email on August 10, 2022 to the parties asking them to choose a mutually agreed upon date by August 23, 2022, or a date would be assigned by the Tribunal. The Tribunal sent a follow-up email on August 19, 2022 asking for the parties to choose a date and respond by August 23, 2022, or the resumption date would be assigned by the Tribunal. As the Tribunal had not received a mutually agreed upon date by the parties, the Tribunal assigned a date for the resumption, that of September 6, 2022 at 11:00 a.m.
27As applicant’s counsel attended the case conference of July 13, 2022, he would have been aware of the adjudicator’s order that the case conference was to resume within 45 days. I find the notices provided to the parties by email were clear that if the Tribunal has not been given a date by the parties, one would be assigned. While I understand that the applicant’s counsel was away and his schedule was not updated, I find the Tribunal provided reasonable notice and therefore, did not violate the rules of procedure with respects to choosing a date for the resumption.
28The Common Rules s. 3.1 outline that the rules will be liberally interpreted and applied and may be waive, varied or applied on the Tribunal’s own initiative to facilitate a fair, open and accessible process and to effective participation by all parties.
29Rule 3.5 requires the Tribunal to give parties notice of its intention to dismiss; provide reasons for its intention; inform the parties of their right to make submissions within a time limit; and consider any written submissions provided.
30Every aspect of rule 3.5 is required to be followed to ensure a fair, open, and accessible process as missing a step would not be consistent with the Schedule’s consumer protection mandate.
31Even though I find that the Tribunal did not err in its notification about the case conference resumption, and the applicant and applicant’s counsel did not attend the case conference resumption, upon review of the CCRO of July 29, 2022, while the adjudicator gave the parties notice of its intention to dismiss and provided reasons for its intention, the Tribunal did not inform the parties of their right to make submissions. Therefore, I find that the Tribunal violated the rules of procedural fairness as it did not give the applicant an opportunity to provide submissions within a specified time limit as required by Rule 3.5.
CONCLUSION
32For the reason noted above, I grant the Applicant's request for reconsideration. The applicant can proceed with his application.
33The Tribunal will contact the parties to arrange for case conference for this matter.
Amanda Marshall
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 9, 2023