RECONSIDERATION DECISION
Before: Kate Grieves
Licence Appeal Tribunal File Number: 23-015311/AABS
Case Name: Michael Kireev v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Sherilyn Pickering, Counsel
For the Respondent: Adam Fox, Counsel
OVERVIEW
1On March 8, 2024, the applicant requested reconsideration of the Tribunal’s decision in the case conference report and order dated February 22, 2024 (“CCRO”).
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 submits that the Tribunal acted outside of its jurisdiction or violated the rules of natural justice or procedural fairness, by unilaterally dismissing 26 issues that were listed in the application.
4The respondent submits that the issues were already in dispute in a prior application before the Tribunal, that the applicant had the opportunity to make submissions at the case conference, and that the request for reconsideration is improper because it is premature.
RESULT
5The applicant’s request for reconsideration is granted.
ANALYSIS
6I find that the Tribunal acted outside its jurisdiction and committed a material brief of procedural fairness by dismissing the 26 issues at the case conference.
7On August 10, 2021, the applicant filed an application to the Tribunal, bearing file number 21-009788/AABS. Initially, there were four treatment plans in dispute, as well as an award under Regulation 664 and interest. At the case conference, the applicant sought to add a further 26 issues. The Tribunal listed the issues in the CCRO dated December 20, 2022. The matter proceeded to a written hearing.
8The applicant filed a second application for the same 26 issues (Tribunal file number 23-008403/AABS) on July 18, 2023. A third application was filed in December 2023 bearing file number 23-015311/AABS.
9A case conference for the matter 23-008403/AABS was held on February 9, 2024. At that case conference, the parties agreed to combine the second and third files (23-008403/AABS and 23-015311/AABS) under one file to operate under 23-015311/AABS. At the case conference, the respondent argued that the subject 26 issues listed in the July application had previously been adjudicated, and therefore should be withdrawn or dismissed. The adjudicator agreed, and dismissed the 26 issues in dispute, finding them to be duplications of issues already before the Tribunal in the application bearing file number 21-009788/AABS. This was inaccurate. In the interim since the request for reconsideration request was filed, the decision in 21-009788/AABS was released and makes it clear that the 26 issues were withdrawn from that dispute. Therefore, res judicata does not apply.
10Rule 3.4 of the Rules sets out the scenarios in which an appeal may be dismissed without a hearing, including if the appeal is frivolous, vexatious, or commenced in bad faith; the appeal relates to matters outside the Tribunal’s jurisdiction; the statutory requirements have not been met; or the appellant has abandoned the procedure. I agree with the applicant that none of those apply.
11Rule 3.5 sets out the process for an appeal to be dismissed without a hearing. The Tribunal must give notice to the parties of its intent to do so, provide reasons for its intent to do so, inform the parties of their right to make written submissions with at least 5 days’ notice, and consider any written submissions.
12I agree with the applicant, the Tribunal committed a material breach of procedural fairness by unilaterally dismissing 26 issues that were listed in the application, contrary to the Tribunal’s own rules. The Tribunal did not give the parties an opportunity to make written submissions, but rather, incorrectly determined that the matters were already adjudicated. While the parties were given the opportunity to make oral submissions during the case conference, the parties were not given an opportunity to make written submissions. No reasons were provided for the dismissal of the issues, other than the mistaken belief that the issues were a duplication of the issues already before the Tribunal. The decision to unilaterally dismiss the issues at the case conference was outside of the jurisdiction of the Tribunal in contravention of the rules, and deprived the applicant of procedural fairness.
13The respondent submits that the request for reconsideration is premature because the applicant’s appeal has not been disposed, as a hearing is scheduled to proceed. Rule 18 does not require that a decision encompass an entire application. A decision of the Tribunal is interlocutory only where it does not finally dispose of an applicant’s accident benefits application or does not dispose of any substantive issues or claims in the proceeding. The Tribunal’s order effectively disposed of the applicant’s claim to 26 issues in dispute without a hearing, the applicant is entitled to seek reconsideration of that decision.
14I do not agree with the respondent that the applicant’s actions amount to an abuse of process. The CCRO dated December 20, 2022 (file # 21-009788/AABS) was unclear as to whether the 26 issues formed part of the dispute that proceeded to the written hearing. The applicant filed the second application for the 26 issues in order to preserve his rights.
15I order that the parties attend a resumption of the case conference for case management purposes.
CONCLUSION & ORDER
16The Tribunal committed a material breach of procedural fairness by unilaterally dismissing 26 issues that were listed in the application, contrary to the Tribunal’s own rules. The request for reconsideration is granted.
17I order that:
a. The 26 issues filed in the application under Tribunal file number 23-008403/AABS are part of the dispute under file 23-015311/AABS. The parties shall attend a resumption of the case conference for case management purposes so that these issues can be considered for the hearing. The Tribunal may issue procedural orders as the Tribunal deems necessary pursuant to Rule 14 of the Licence Appeal Tribunal Rules, 2023.
b. Within 14 days of the release of this reconsideration decision the Tribunal will canvass the parties’ availability for the resumption of the case conference, to be held within 30 days of the release of this reconsideration decision.
Kate Grieves
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 28, 2024