Samuel Agyapong v. Aviva Insurance Canada, 2024 CanLII 46906

Citation: Agyapong v. Aviva Insurance Canada, 2024 ONLAT 18-004309/AABS - R

RECONSIDERATION DECISION

Before: E. Louise Logan Vice-Chair, Delegate

Licence Appeal Tribunal File Number: 18-004309/AABS

Case Name: Samuel Agyapong v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Frank Grande, Counsell

For the Respondent: Geoffrey Keating, Counsel

OVERVIEW

1On January 24, 2024, the applicant requested reconsideration of the Tribunal’s decision dated January 4, 2024 (“decision”). In the decision, the Tribunal dismissed the application for non-earner benefits, attendant care benefits, treatment plans, interest and an award under section 10 of Regulation 664.

2The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). 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 committed a material breach 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; or

c) 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.

3The applicant is requesting reconsideration pursuant to Rule 18.2(a) and (b). He is seeking a new hearing. The respondent submits that the request for reconsideration should be dismissed.

RESULT

4The applicant’s request for reconsideration is granted, in part.

PROCEDURAL ISSUES

5When the applicant filed his request for reconsideration on January 24, 2024, he requested reconsideration of the Tribunal’s Motion Order dated December 27, 2023 (“Motion Order”) as well as the Tribunal’s January 4, 2024 decision. In my Reconsideration Order dated February 8, 2024, I found that the request for reconsideration of the Motion Order was not filed in compliance with Rule 18.1. The Motion Order denied the applicant’s request for an extension of time to file written submissions for the written hearing, or in the alternative, to convert the written hearing to an in-person or videoconference hearing. I found that the Motion Order did not contain a decision that finally disposed of an appeal as required by Rule 18.1.

6I also found that the applicant’s request for reconsideration of the Tribunal’s January 4, 2024 decision was filed in compliance with Rule 18.1. As the applicant’s reconsideration submissions largely addressed the Motion Order, I invited the applicant to file additional submissions with respect to the decision. These submissions, along with the respondent’s response and the applicant’s reply, are now before me.

7Although interlocutory in nature, I find that the Motion Order was integral to the Tribunal’s decision to dismiss the application. Therefore, while the Motion Order itself is not subject to reconsideration, I have considered it in the context of how it impacts procedural fairness in the final decision.

ANALYSIS

8The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

9By way of brief background, the application in this case was filed on May 28, 2018. After a series of delays resulting from a change in the applicant’s legal representative, a request by the applicant to add catastrophic impairment as an issue, an adjournment request for the applicant to obtain expert reports, and a request to change the hearing format, a written hearing was scheduled for December 22, 2023. By Motion Order dated September 28, 2022, the deadline for the applicant’s submissions and evidence was set for 30 days before the hearing, the deadline for respondent’s submissions and evidence was 14 days before the hearing, and reply submissions were due seven days before the hearing.

10On December 6, 2023, 14 days after the deadline for applicant’s submissions had passed and 16 days before the hearing, the applicant filed a Notice of Motion to extend the timeframe for his submissions. In his Notice of Motion, the applicant submitted that his then representative had two deaths in his family within a month of each other and just prior to the submission deadline. As a result, the representative had missed the filing deadline.

11On December 27, 2023, after the scheduled written hearing date of December 22, 2023, the Tribunal denied the applicant’s motion for an extension of time to file submissions. It found the respondent would be prejudiced by incurring the expense of drafting new submissions, extending the deadline would add delay to an application that was more than five and a half years old, inadvertence is not a valid reason for missing a deadline, and the lack of deadlines for document exchange in the Motion Order did not justify the request.

12The Tribunal’s decision, which found the applicant had not made any submissions and therefore had not met his evidentiary burden, was issued on January 4, 2024.

Rule 18.2(b)

13The applicant submits that he did not withdraw his application for catastrophic impairment (CAT), and that the Tribunal erred when it found in the Motion Order that he had withdrawn his CAT application.

14I find that the applicant did withdraw his CAT application in his Notice of Motion dated August 22, 2022. In the Notice of Motion, the applicant indicated that he had not received his section 25 reports relating to his CAT application, and that the parties had agreed to “bifurcate the hearing to proceed, at this time, only on the non-earner issue”. The applicant attached emails between the parties’ representatives to his Notice of Motion. In an email dated August 8, 2022 from the applicant’s then representative to the respondent’s counsel, the applicant’s representative wrote that he was proposing “to proceed on the NEB issue, and to deal with the CAT impairment at another time”. The respondent’s counsel responded on August 16, 2022 that the respondent agreed to “dealing with the CAT issue at a later date in a new application”. In response, on August 18, 2022, the applicant’s representative indicated he had instructions from his client to convert the non-earner benefit hearing, if necessary, into written format. The applicant then filed the Notice of Motion with the Tribunal as noted above, indicating that the parties had agreed to bifurcate the hearing and to proceed, at that time, only on the non-earner issue. In addition, the applicant also indicated that the parties wished to convert the hearing for non-earner benefits from a videoconference to a written hearing. In a Motion Order dated September 8, 2022, the Tribunal granted the applicant’s request, noting it was on consent. At paragraph 6, the Tribunal noted that the applicant’s motion included “[t]he issue of catastrophic impairment to be withdrawn”.

15I find that in August 2022, the applicant indicated to the Tribunal that he was not proceeding with the issue of CAT impairment and that he was proceeding with the issues of non-earner benefits, medical benefits, an award and interest. Furthermore, as set out above, Rule 18.1 requires that a request for reconsideration be filed within 21 days of the date of the decision. The applicant did not object to the September 8, 2022 Motion Order, which granted his motion, and which was issued more than a year before the hearing.

16The applicant has not established grounds for request for reconsideration with respect to the issue of catastrophic impairment.

Rule 18.2(a)

17The applicant also argues that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness when it dismissed his application without allowing him to make submissions.

18The applicant submits that the Tribunal dismissed his application for non-earner benefits, treatment plans, interest and an award without a hearing when it found that the applicant had not filed submissions and evidence. He argues that the Tribunal did not provide notice of intent to dismiss as required by the SPPA and Rule 3. The applicant further argues that the Tribunal was estopped from making a final order because the respondent argued, as preliminary issues, that the application should be dismissed and that the applicant should not be able to submit or rely on documentary evidence or written submissions. He makes this argument on the same grounds as noted above. That is, given the respondent had raised these arguments (or preliminary issues as he terms them), the applicant was entitled to notice of intent to dismiss and an opportunity to make submissions as to why his application should not be dismissed without a hearing. He submits that the failure to provide notice of intent to dismiss and an opportunity to make submissions was a violation of procedural fairness. He cites Vettivelu v. Intact Insurance Company, 2023 CanLII 26920 (ON LAT) in support of his position.

19The applicant also argues that the Tribunal did not set a date for submission of evidence as required by Rule 9.5. He argues that the September 8, 2022 Motion Order set a date for written submissions but did not stipulate a timeline for the parties to exchange their evidence briefs. He submits that procedural fairness requires a timeline for evidence briefs to be submitted to the Tribunal.

20The respondent submits that the applicant failed to submit written submissions or evidence for the hearing, and his application was dismissed because the applicant had not met his evidentiary burden. The respondent submits that the applicant’s reconsideration submissions are premised on the incorrect assumption that the decision was a preliminary issue decision. The respondent also submits that because the hearing proceeded in written format, the applicant’s arguments with respect to notice to dismiss without a hearing are of no application. The respondent also submits that Vetttivelu, which was a motion decision explicitly ordering dismissal of a matter without a hearing, is of no relevance to the hearing in this matter.

21The respondent argues that submission deadlines for the hearing were set on consent of the parties, and that no one raised a concern with respect to hearing briefs separate from written submissions at the time. Further, the notice of written hearing confirmed that the parties were to disclose their evidence at least 10 days before the hearing or when ordered by the Tribunal.

22The respondent submits that the applicant has not addressed the central issue raised by the hearing decision, that is, how could he succeed without submitting any evidence or submissions. The respondent also submits that the applicant has not provided an explanation as to why he failed to submit submissions or evidence in advance of the hearing date of December 22, 2023. It notes the Motion Order did not explicitly prohibit the applicant from late serving written submissions and/or evidence. It submits the applicant could have filed and sought leave to have them considered despite non-compliance with timelines, and at a minimum, could have provided reply submissions.

23I have reviewed the Tribunal’s Motion Order of September 8, 2022 and find that at paragraph 8(ii) the Tribunal set the deadlines for submissions and evidence for both parties as noted above. There is no breach of procedural fairness with respect to the deadlines for submissions and evidence.

24I also agree with the respondent that a hearing has taken place in this matter. This is clear from the decision, which found the applicant had “made no submissions for this hearing” and found he had not met his evidentiary burden for the benefits in dispute. Accordingly, the applicant’s arguments with respect to notice of intent to dismiss without a hearing are not relevant.

25I find, however, that there was a breach of procedural fairness for the following reasons. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, the Supreme Court of Canada stated, 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.

26In this case the dismissal of the application involved the inadvertence of a representative. The courts have shown a preference for hearing the matter on the merits where the reasons for dismissal involve inadvertence of counsel. This is because it is the client’s interests that are impacted by the actions of counsel. See, for example, the Superior Court’s decision on inadvertence of counsel in Patel v. Patel, 2023 ONSC 6565. I find this principle is applicable to this case. Therefore, I will consider the inadvertence of the applicant’s former representative, and the reasons for and consequences of this inadvertence, when determining whether there was a breach of procedural fairness.

27I will now turn to the affidavit of the former representative, which was included in the applicant’s reconsideration submissions in support of his position that it was the representative’s inadvertence that led to the missed deadline. In the affidavit the former representative set out, in detail, the events that led up to missing the deadline for submissions. Although many of the details are not relevant to the current question, and the affidavit includes information that appears to be self- serving, one fact that is of relevance in the affidavit is that the former representative’s parents-in-law passed away on October 16 and November 23, 2023. The former representative states that due to their deaths, he became extremely distracted and did not attend the office through November 2023, and therefore missed the deadline to file the applicant’s submissions. On December 4, 2023, when he realized the deadline had passed, he contacted the respondent’s counsel to get his consent to a motion for an extension of time. Respondent’s counsel did not give his consent.

28As noted above, the former representative submitted a Notice of Motion on December 6, 2023 requesting an extension of time to make submissions. The Tribunal’s Motion Order was issued on December 27, 2023, after the scheduled written hearing date of December 22, 2023. The Tribunal’s decision, which found the applicant had not made any submissions and therefore had not met his evidentiary burden, was issued on January 4, 2024.

29I find that the Tribunal dismissed the application without submissions from the applicant despite the fact the deadline for submissions had been missed due to the inadvertence of his former representative, the former representative had brought a Notice of Motion to request an extension before the written hearing date, and the request for an extension of time was denied after the written hearing date. In my view, the combination of the Motion Order that denied the request for an extension of time to make submissions and the decision which found that the applicant had not made submissions and had therefore had not met his burden, resulted in a material breach of procedural fairness. The applicant’s application for benefits was prejudiced due to the inadvertence of his former representative, which in my view outweighs any potential prejudice to the respondent, which can be cured through the opportunity to make further responding submissions.

30While it is my view that in light of the specific facts of this case the applicant was denied his participatory rights, this decision should not be interpreted as standing for the general principle that if deadlines are missed due to the inadvertence of a representative, there is a breach of procedural fairness.

31For the reasons set out above, the applicant’s request for reconsideration is granted.

32I am keenly aware that this application was filed on May 28, 2018 and that it has been delayed by a series of procedural requests and orders initiated by the applicant. For this reason, I am making my procedural orders related to the hearing format and submission deadlines peremptory on the parties, as set out below.

CONCLUSION AND ORDER

33The applicant’s request for reconsideration is granted, in part.

34The applicant’s request for reconsideration of the issues in dispute as set out in the decision dated January 4, 2024 is granted. The issues listed in the January 4, 2024 decision will be reheard by way of written submissions by a different adjudicator.

35The Tribunal shall schedule the rehearing in writing for no later than 90 days after the release of this reconsideration decision.

36The written format for the hearing and the following timetable for submissions is peremptory on the parties:

i. The applicant may file submissions and evidence no later than 30 calendar days after the release of this reconsideration decision. Submissions shall be limited to ten (10) double-spaced pages, exclusive of evidence and authorities, and shall be provided to the respondent.

ii. The respondent may file responding submissions and evidence by no later than 45 calendar days after the release of this reconsideration decision. Submissions shall be limited to ten (10) double-spaced pages, exclusive of evidence authorities, and shall be provided to the applicant.

iii. The applicant may file reply submissions, or file notice that no reply submissions will be filed, no later than seven (7) calendar days after the respondent has filed its responding submissions. Reply submissions shall be limited to five (5) double-spaced pages, exclusive of evidence and authorities, and shall be provided to the respondent.

37All written submissions and/or authorities shall be in 12-point Arial or Times New Roman font, indexed, bookmarked/tabbed, and consecutively page-numbered. Submissions shall make specific reference to the evidence and law by page and tab number.

38The applicant’s request for reconsideration with respect to the issue of catastrophic impairment is dismissed.

E. Louise Logan Vice-Chair Tribunals Ontario – Licence Appeal Tribunal