RECONSIDERATION DECISION
Before:
Ulana Pahuta
Licence Appeal Tribunal File Number:
23-015569/AABS
Case Name:
[NA] v. Definity Insurance Company
Written Submissions by:
For the Applicant:
Imtiaz Hosein, Counsel
For the Respondent:
Danielle Gauvreau, Counsel
OVERVIEW
1On April 24, 2025, the applicant requested reconsideration of the Tribunal’s decision dated April 3, 2025 (“decision”).
2In this decision, the Tribunal considered the applicant’s oral request for an adjournment at the start of the videoconference hearing. The Tribunal denied the adjournment request on the basis that the applicant had not led sufficient evidence to establish that concerns with the applicant’s capacity and a possible conflict of interest with the applicant’s litigation guardian warranted an adjournment.
3Given that the applicant had not filed any evidence for the hearing, and did not make any submissions on the substantive issues, the Tribunal found that the applicant did not meet her burden of proof, and the application was dismissed.
4The issues in dispute at the initial hearing were: whether the applicant had sustained a catastrophic impairment as defined by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016); whether the applicant was entitled to the cost of a catastrophic assessment in the amount of $10,240.00, plus interest; and whether the respondent was obliged to pay an award.
5The 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.
6The applicant seeks reconsideration under Rules 18.2(a), (b) and (c). She submits that the Tribunal committed a material breach of procedural fairness; that the Tribunal made an error of law and fact such that the Tribunal would likely have reached a different result had the error not been made; and that there is evidence of the applicant’s incapacity that was not before the Tribunal when rendering its decision, that could not have been obtained previously, and would likely have affected the result. The applicant requests an order cancelling the decision to dismiss her application.
7The respondent submits that the applicant has not established a basis for reconsideration.
RESULT
8The applicant’s request for reconsideration is granted.
ANALYSIS
9The 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.
Procedural history
10The applicant was involved in a motor vehicle accident on August 29, 2017 and applied to the respondent for catastrophic determination. After the respondent denied the applicant’s catastrophic application, the applicant filed an application with the Tribunal on December 21, 2023. At the case conference held on May 29, 2024, the matter was set down to be heard at a four-day videoconference hearing beginning on November 25, 2024. On November 4, 2024, a declaration of representative was submitted by the applicant’s new counsel.
11On November 15, 2024 the applicant requested an adjournment of the videoconference hearing on the grounds that she had retained new counsel, the counsel had yet to receive the file from the applicant’s former counsel and the applicant’s new counsel had a scheduling conflict. The applicant’s request for an adjournment was not opposed by the respondent. The Tribunal granted the applicant’s request for an adjournment and the hearing was rescheduled to February 18, 2025.
12At the February 18, 2025 hearing, the applicant’s counsel made an oral request that the hearing be stayed for an indefinite period of time to allow applicant’s counsel to investigate his concerns about the applicant’s capacity. Applicant’s counsel also raised the issue of a possible conflict of interest between applicant’s counsel and the applicant’s mother, the applicant’s litigation guardian. In the alternative, applicant’s counsel requested a 4 to 6 month adjournment to investigate the issue and arrange for the “proper circumstances” for the matter to proceed. The respondent did not oppose the adjournment request. In the decision dated April 3, 2025, the Tribunal denied the adjournment request and dismissed the applicant’s application.
13On April 24, 2025, the applicant requested reconsideration of the April 3, 2025 decision. In an email sent with the applicant’s reconsideration request, the applicant noted that the respondent had been served with a “redacted version” of the applicant’s reconsideration submissions, since the reconsideration submissions contained privileged information that was only being disclosed to the Tribunal. In a Reconsideration Order dated May 2, 2025, the Tribunal requested submissions from the parties as to whether the applicant’s request for reconsideration met the filing requirements of Rule 18.1, and if so, how the reconsideration request should then be adjudicated on its merits.
14After receiving the parties’ submissions, a second Reconsideration Order dated June 11, 2025 was issued. In this Order the Tribunal found that withholding a portion of the applicant’s submissions from the respondent would severely impair its ability to respond to the reconsideration request, and that a fundamental aspect of procedural fairness is that parties are entitled to know the case they must meet. Accordingly, the applicant was ordered to file and serve a set of unredacted, supporting submissions for adjudication of her reconsideration request, by June 18, 2025. A failure to meet this deadline would mean that the Tribunal would adjudicate the reconsideration request based on the redacted reconsideration submissions that the applicant had previously submitted and served on the respondent.
15The applicant did not file any new reconsideration submissions by the June 18, 2025 deadline. Accordingly, this reconsideration request will be adjudicated on the applicant’s reconsideration submissions filed and served on April 24, 2025.
Did the Tribunal act outside its jurisdiction or commit a material breach of procedural fairness?
16I find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(a).
Parties’ positions
17The applicant submits that the denial of the adjournment at the initial hearing and the dismissal of her application constitute a material breach of procedural fairness. She argues that a claimant has a substantive right to be heard and that she was denied an opportunity to present her case fully and fairly. The applicant submits that at the initial hearing, her counsel voiced concerns about the pressing need for an adjournment or a stay due to a possible conflict of interest between the applicant’s counsel and the applicant’s mother, who was the applicant’s litigation guardian. The applicant’s counsel also raised capacity concerns with respect to the applicant.
18The applicant submits that at the initial hearing, her counsel explained that: he had been newly retained as counsel three months before the hearing; there had been a delay in receiving the applicant’s file from previous counsel; he had spoken with the applicant’s treating occupational therapist six weeks before the hearing where capacity concerns were raised; he had spoken with the applicant’s mother a week before the hearing, leading to concerns that the applicant may have capacity issues that prevent her from instructing counsel; that the applicant’s mother was the litigation guardian; and that the night before the hearing applicant’s counsel learned of his potential conflict issues with the litigation guardian.
19She argues that at the initial hearing, the adjudicator insisted that the hearing proceed unless evidence was provided of the conflict of interest and of the applicant’s incapacity and the need for a litigation guardian. However, the applicant submits that evidence of the conflict of interest could not be provided due to attorney-client privilege and privacy rights. The applicant submits that her counsel tried to contact the Law Society Practice Management Helpline during the hearing to get assistance with the conflict and privilege issue, but his call was not immediately answered.
20With respect to the adjudicator’s request for evidence of incapacity, the applicant submits that her treating occupational therapist testified and confirmed that she had concerns about the applicant’s capacity. The applicant submits that this medical evidence was uncontroverted. The applicant argues that it was impossible to obtain the capacity assessment in such a short timeframe before the hearing, and she has since obtained the capacity assessment, dated April 15, 2025, confirming the incapacity.
21The respondent disputes that the applicant was denied procedural fairness. It submits that at the initial hearing, the adjudicator properly considered the factors for consideration for an adjournment request under Rule 16, and that the applicant was provided an opportunity to make submissions in support of the request, including calling a witness. The applicant had not filed any medical evidence in support of her claim of incapacity. The respondent argues that the adjudicator at the initial hearing properly considered whether there were compelling circumstances to warrant the oral adjournment request under Rule 16.2 and after weighing the evidence, determined that the applicant had not established such compelling circumstances.
22The respondent further submits that once her request for an adjournment was denied, the applicant elected not to call any witnesses or lead any evidence. As a result, she failed to meet her burden of proof at the hearing and her application was dismissed. Given that the applicant was given the opportunity to participate in the hearing and had the right to be heard, there was no procedural unfairness.
Analysis
23I find that the applicant has established a material breach of procedural fairness, pursuant to Rule 18.2(a).
24I agree with the adjudicator’s statement at para 15 of the decision that Rule 16.2 requires that oral requests for adjournments only be made in compelling circumstances where a party could not have known of the circumstances giving rise to the adjournment request prior to the event. However, I find that in the present case, the Tribunal committed a material breach of procedural fairness when it denied the applicant’s adjournment request.
25In this case, as set out above, the applicant had a litigation guardian. An unusual circumstance arose when the applicant’s counsel indicated that, on the eve of the hearing, he had identified a potential conflict of interest with the applicant’s litigation guardian. Although it is not clear from the record why this conflict was not identified earlier, especially given counsel’s responsibility to conduct a thorough conflict check when taking the applicant on as a client, it is nonetheless the case that applicant’s counsel stated at the hearing that a potential conflict had just been identified.
26I agree with the hearing adjudicator that the capacity concerns were an issue that counsel had, or should have, been aware of prior to the hearing, and in fact, it is clear that capacity issues were a factor given that a litigation guardian had been appointed. However, the complicating issue in this case is the fact that the recently retained counsel identified potential conflict issues on the eve of the hearing.
27The applicant submits that her counsel did not receive her file from her previous counsel until January 10, 2025, and that six weeks before the hearing, capacity concerns were raised after her counsel’s conversation with her treating occupational therapist. However, it was only after a conversation with the applicant’s mother on the eve of the hearing that a possible conflict of interest between the applicant’s counsel and the litigation guardian had been revealed. I accept the applicant’s argument that evidence of such a conflict could not have been provided at the hearing without potentially violating privilege, and that the concern about being unable to receive instructions from the litigation guardian would necessitate a brief adjournment. I accept the applicant’s reconsideration submissions that it was the combination of the potential conflict of interest, capacity concerns and a recently retained counsel, that necessitated the oral adjournment request.
28In support of this finding, I note that in the recent Divisional Court decision AIG Insurance Company v. Riddell, 2025 ONSC 1979, the Court considered adjournment requests in complex cases such as catastrophic determination (CAT). While the Riddell decision was released after the initial decision, the reasoning in Riddell is instructive and binding on me. The Court in Riddell found that CAT cases are among the most serious and complex of cases the Tribunal must consider, and that more flexibility is required in such cases than in cases where less is at stake, with simpler issues and a shorter hearing. The Court in Riddell stayed the Tribunal’s order refusing the adjournment and directed the Tribunal to schedule the substantive hearing on alternative dates.
29In applying the reasoning in Riddell, I find that it would be procedurally unfair to deny the applicant from proceeding with her application for catastrophic determination. Particularly given that CAT is at issue, a flexible approach to the adjournment request was required. I further find that the testimony of the treating occupational therapist confirming capacity concerns, together with the potential conflict with the litigation guardian, was evidence of compelling circumstances for an adjournment request. The fact that the applicant’s counsel had been recently retained and only received the applicant’s file a month before the hearing further complicated the case. To be clear, I am not making a finding that the specific remedy requested by the applicant, being an indefinite stay or a 4 to 6 month adjournment should have been granted. Rather, in these unusual circumstances a flexible approach and a short adjournment to clarify whether applicant’s counsel could proceed, was warranted.
30While I acknowledge the respondent’s arguments, I find the fact that the applicant was able to make submissions and call a witness does not equate to procedural fairness in the context of these particular circumstances for the reasons set out above.
31I find that the applicant has established a material breach of procedural fairness in the initial decision. Accordingly, pursuant to Rule 18.4 the initial decision is cancelled. I am directing a rehearing of the issues in dispute by a new adjudicator.
CONCLUSION & ORDER
32The applicant’s request for reconsideration is granted.
33Pursuant to Rule 18.4 the initial decision is cancelled and a rehearing of the issues in dispute will take place with a new adjudicator.
34Within 30 days of the release of this reconsideration decision, the Tribunal will canvass the parties to schedule a case conference so that the Tribunal can issue procedural and administrative directions as necessary for the conduct of the hearing.
35I am not seized of this matter.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 13, 2025```