Licence Appeal Tribunal File Number: 21-006395/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:
Sabrina DiPietro
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Sabrina DiPietro, Applicant – did not attend
Ivan Marini, Counsel
For the Respondent:
Beth Thompson, Adjuster
Cara Boddy, Counsel
Court Reporter:
Guido Riccioni
Heard by Videoconference:
December 11, 2023
OVERVIEW
1Sabrina DiPietro, the applicant, was involved in an automobile accident on April 9, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL ISSUES
2At the commencement of the hearing, the applicant’s motion for an adjournment was argued. The applicant was not in attendance. For the reasons that follow, I denied the motion.
3On August 21, 2023, the applicant’s counsel filed a request for an adjournment for a videoconference hearing which was to take place on September 5, 2023, due to a medical condition. The applicant’s request for an adjournment was granted in an Order dated August 29, 2023, and the Order stated the hearing shall commence no earlier than November 6, 2023, and no later than January 8, 2024.
4The hearing was scheduled for December 11, 2023. The Tribunal requires a document brief and a finalized witness list to be submitted no later than 10 days prior to the hearing. The applicant did not submit any document briefs or witness lists prior to the hearing.
5The applicant filed a second adjournment request on December 1, 2023, which was scheduled to be heard at the start of the hearing.
6The applicant’s counsel submitted that he had bypass surgery a few years ago and he has not had a return to health thus far. He submitted into evidence a medical note from a Dr. Allega, dated November 20, 2023, which states “…..I have recommended to Mr. Marini that he greatly diminish his workload including participation in trials for the indefinite future.”
7He also submitted that he had consulted with another law firm to take on the file approximately six to eight weeks ago, however, no commitment or decision has been made as of yet to take on the file, he did not provide any evidence or documentation to support the possible transition of the carriage of this file from his office to another.
8The respondent consented to the adjournment request.
ORDER
9I gave an oral ruling to the parties that an adjournment will not be granted, with reasons to follow, and that the hearing was to proceed as scheduled.
ANALYSIS
10Although both parties consented to the adjournment, consent alone is not determinative. Rule 16.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) provides a list of factors the Tribunal will consider when a request for an adjournment is made, which includes but is not limited to, the age of the file, whether any previous adjournments have been granted, the length of notice of the event the Tribunal provided to the parties and whether the reason for the adjournment request was foreseeable and avoidable.
11The file is currently 931 days old, and this is the second adjournment request for essentially the same reason a previous adjournment was granted. A hearing notice was sent to the parties on September 8, 2023, approximately three months prior to the hearing. The applicant’s counsel submitted that he has had ongoing health issues for a lengthy period of time and has been under the care and supervision of his doctor. On this basis, I find he knew or ought to have known that he would be unable to conduct today’s hearing and that counsel had sufficient time to make arrangements with another counsel or law firm to proceed today so as to not prejudice his client. I have also taken into consideration the Tribunal’s mandate to provide fair, impartial, and efficient means of dispute resolution. I find by adjourning today’s hearing for a second time, the parties are denied the legitimate expectation to have a fair and full hearing before a neutral adjudicator in a timely fashion. Therefore, an adjournment would be denied, as the factors in Rule 16 do not weigh in favour of granting another adjournment.
12After delivering my ruling, applicant’s counsel requested a 30-day adjournment to allow the applicant time to seek new counsel. That request was also denied pursuant to Rule 16.2, which states that oral requests for an adjournment will only be allowed in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event. However, in an effort to assist counsel, an offer was made by the Tribunal to stand the matter down for one day and have the matter proceed on December 12, 2023 at 9:30 am. He was also advised that the Tribunal would accept his document brief and evidence at the start of the next day of the hearing on December 12, 2023.
13Applicant’s counsel advised the Tribunal that he was unprepared for this hearing, and he cannot move forward in this manner. The Tribunal stood the matter down for 15 minutes so that the applicant’s counsel could decide how he wished to proceed.
14Upon returning he advised the Tribunal that he was unable to proceed and wished to withdraw the application.
15His decision to withdraw the application concluded the hearing.
ORDER
16The application is withdrawn, and the Tribunal's file is now closed.
Released: January 25, 2024
__________________________
Mary Henein Thorn
Adjudicator