RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 24-011834/AABS
Case Name: Janusz Kudaszewicz v. The Personal Insurance Company
Written Submissions by:
For the Applicant: Ryan O’Connor, Counsel
For the Respondent: Andrew Cottreau, Counsel
OVERVIEW
1On September 5, 2025, the applicant requested reconsideration of the Tribunal’s decision dated August 15, 2025 (“decision”).
2In the decision, the Tribunal dismissed the applicant’s application for a non-earner benefit, an award, and interest.
3The 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.
4The applicant is seeking reconsideration pursuant to Rule 18.2(a), that is, the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness.
5The respondent submits that the request for reconsideration should be dismissed.
6The applicant is seeking an order that the Tribunal reverse its decision on the issues in dispute, or in the alternative, schedule a new oral hearing.
RESULT
7The request for reconsideration is granted pursuant to Rule 18.2(a).
8Pursuant to Rule 18.4, I am cancelling the decision and ordering a rehearing of the issues in dispute before a new adjudicator.
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.
Material Breach of Procedural Fairness – Rule 18.2(a)
10I find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(a).
11At the heart of this reconsideration request is the Tribunal’s decision not to grant the applicant’s oral adjournment request at the videoconference hearing held on July 16, 2025. The adjournment request was made on the basis of the medical condition of the applicant’s former representative. The request was made orally at the hearing.
12Rule 16.2 provides that an oral adjournment request may be made at an adjudicative event. It also states that oral requests 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. The Tribunal may also direct that a request for an adjournment be heard at an adjudicative event.
13Briefly, in this case, the Tribunal determined that the requirements in Rule 16.2 had not been met and denied the request for an adjournment. The Tribunal then determined that, as the applicant did not file any evidence and made no submissions, they had not met their burden of proof. The Tribunal dismissed the application.
14The applicant submits that the Tribunal’s denial of the adjournment request was based on an overly narrow and rigid interpretation of Rule 16.2. She submits that the Tribunal erred when it focused on a why a written adjournment request was not made earlier and placed emphasis on what was purportedly missing in the evidentiary record, rather than considering the nature of the medical emergency. The applicant further submits that the Tribunal imposed an unreasonable evidentiary standard by dismissing the affidavit of Joseph Zayouna, lawyer and managing partner of the law firm representing the applicant. The applicant argues the Tribunal placed an impossible burden on the applicant and her representative by demanding a precise timeline and detailed medical records in the midst of a health crisis. Furthermore, the applicant notes that the respondent consented to the adjournment request.
15The applicant also submits that the Tribunal’s delay in rendering a decision further underscores the unreasonableness of the denial. She submits that the written decision was released on August 15, 2025, nearly 30 days after the July 16, 2025 hearing. During this time, a brief adjournment could have been granted. The applicant submits that it is also notable that the Tribunal suggested to the parties at the hearing that the applicant could withdraw the application, and the parties enter into a tolling agreement. She argues this demonstrates the Tribunal understands the importance of adjudicating the matter on its merits. The applicant also references the Tribunal’s “internal metrics which incentivize adjudicators” to dispose of applications by denying oral adjournment requests and dismissing applications without a hearing.
16In its reconsideration submissions, the respondent notes that it advised the applicant in advance of the videoconference hearing that it would consent to an adjournment request. Nonetheless, the respondent notes that it accepts the resulting Tribunal decision and respects the Tribunal’s jurisdiction to adjudicate adjournment requests pursuant to Rule 16. It submits that in the reconsideration proceeding, no new evidence has been submitted, and the applicant’s request is an attempt to have the Tribunal reweigh evidence. This is not the purpose of reconsideration. It maintains the Tribunal was correct to dismiss the application once the adjournment was denied, because no evidence was filed by the applicant, and the applicant did not attend to testify.
17Before considering the parties’ submissions, it is helpful to first understand the relevant events leading up to the adjournment request.
18On September 24, 2024 a Declaration of Representative was filed with the Tribunal identifying Jacek Maludzinski, paralegal, as the applicant’s representative. Mr. Maludzinski submitted a case conference summary and participated in the case conference on January 23, 2025. The Case Conference Report and Order (CCRO) dated January 24, 2025, ordered a one-day videoconference hearing and set out case management orders for the hearing. These orders included setting out deadlines for document exchange, and filing and serving final witness lists and hearing briefs. It indicated that the witnesses the applicant could call were the applicant and Dr. Attala, family physician.
19A Notice of Videoconference Hearing was sent to the parties on February 14, 2025, for a hearing date of July 16, 2025. On July 4, 2025, the Tribunal sent the parties a “Hearing Status” email. Only the respondent’s counsel replied to the email. The applicant’s representative did not respond, nor did the applicant file a hearing brief or witness list for the hearing.
20On Monday July 14, 2025, the Tribunal received an email from Ryan O’Connor, counsel, indicating that he was counsel for the applicant. He asked the Tribunal’s Registrar to advise the presiding adjudicator that the applicant would be seeking an adjournment of the hearing, on consent. Mr. O’Connor indicated that the reason for the adjournment was that his predecessor on the file was hospitalized and unable to proceed. The Tribunal responded the same day indicating that the applicant’s request would not be processed without the correct form. It also indicated that as the request was not received more than two full business days prior to the scheduled event, the requesting party must attend the scheduled hearing and present the adjournment request to the adjudicator.
21On July 15, 2025, Mr. O’Connor filed and served an affidavit of Mr. Zayouna. This affidavit was sworn on July 15, 2025.
22On July 16, 2025, the applicant did not appear at the hearing. Mr. O’Connor appeared, along with respondent’s counsel. Mr. O’Connor made an oral request for an adjournment based on the sudden hospitalization of Mr. Maludzinski, relying on the affidavit of Mr. Zayouna.
23In the affidavit, Mr. Zayouna states that Mr. Maludzinski was suffering from a severe illness and had been recently hospitalized. Given the sudden and serious nature of the illness, more time was required to arrange for the reassignment of the applicant’s file and to ensure sufficient time to prepare for the hearing. Mr. Zayouna attests that he only became aware of the hearing on July 11, 2025. Included with the affidavit was an email dated July 11, 2025 at 3:05 PM. The author of the email is unclear as the “From” line is obscured. It is unsigned or the signature block is missing. The email is to applicant’s counsel and reads in its entirety as follows:
Dear Sir,
Please call our office and ask for Mr. Joseph Zayouna. The arbitration will not go ahead. I am in hospital. Last several weeks I do not have access to my email and/or voice mail. I have been diagnosed with very serious illness and been in and out of hospital.
I am really sorry for this very late communication.
Yours truly,
24Attached to the affidavit is also an email from respondent’s counsel, dated July 14, 2025 at 12:59 PM, to Mr. O’Connor. The email indicates that the respondent is confirming the adjournment request is on consent. It also provides a copy of the email from the Tribunal with the Zoom link for the hearing.
25The decision notes that, at the hearing, Mr. O’Connor indicated that his office learned of Mr. Maludzinski’s hospitalization after being contacted by respondent’s counsel and that there is no other information or evidence on Mr. Maludzinski’s hospitalization.
26Paragraph 15 of the decision further notes that Mr. O’Connor submitted that the requirements of Rule 16.2 were met in this case, as the sudden hospitalization of Mr. Maludzinski was a compelling circumstance, and the applicant could not have known of the hospitalization. He submitted that the language of Rule 16.2 refers to the applicant, and therefore weight should be put on the applicant’s lack of prior knowledge. He submitted that the circumstances were compelling enough to be accepted at face value, and there was no need to understand what happened prior to July 10, 2025, leading to the adjournment request.
27At paragraph 16, the Tribunal noted that the respondent consented to the adjournment request.
28The Tribunal found there was an insufficient basis to allow an oral adjournment request. In reaching this finding, it reasoned at paragraph 18 that:
…the only evidence in support of the request was a cryptic, unsigned email from an email address which is obscured. More significantly, the email is missing crucial details. For example, no information is provided on when the author of the email was hospitalized. Thus, there is no way to tell if this is a recent hospitalization. The author the email states that they have been seriously ill for several weeks and that they have had no access to voicemail or email, but this does not explain why they had no means of communication. In my view, this information is not sufficient to explain why an earlier written adjournment request was not made under Rule 16.1.
29In the decision, the Tribunal disagreed that Rule 16.2 exclusively applies to the applicant himself and that the actions of counsel are irrelevant. It found that Mr. Maludzinski was authorized to represent the applicant and his actions were on behalf of the applicant. The Tribunal indicated that, as a licenced paralegal, there was a reasonable expectation that the representative would comply with the Tribunal’s Rules. It was reasonable to expect Mr. Maludzinski to make arrangements for his substitution. The Tribunal was not persuaded by the evidence or submissions in support of the adjournment request. It concluded:
Rule 16.2 requires the applicant to establish that an adjournment could not be made prior to the hearing. The applicant cannot explain why no brief or witness list was filed with the Tribunal. The applicant is also unable to say when Mr. Maludzinski was hospitalized. In light of these unanswered questions, it is not possible to meaningfully understand what led to an oral adjournment request. Consequently, I find that the hospitalization of Mr. Maludzinski alone does not give enough context to establish that an adjournment request could not have been made prior to the hearing.
For all these reasons, the applicant’s request for to allow an oral adjournment request is denied. [sic]
30As noted above, the Tribunal then determined that the applicant had not met the burden of proof and dismissed the application.
31I find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(a). I find that, in these circumstances, the denial of the adjournment request resulted in the application being dismissed due to a lack of evidence and submissions. The denial of the adjournment request was a material breach of procedural fairness.
32Although not referenced in the parties’ submissions, I find that the principles set out in the Divisional Court’s decision in Fernandez v. Commonwell Mutual Insurance, 2024 ONSC 5180 (Fernandez) are applicable to this case. In Fernandez, which is binding on the Tribunal, the applicant was seeking a catastrophic impairment determination, amongst other issues. She sought an adjournment at the hearing because of the breakdown of her solicitor-client relationship on the eve of the hearing. The respondent consented to the request on terms. The Tribunal refused the adjournment, and the hearing proceeded with the applicant unrepresented. The applicant was found not to have met her onus, and the application dismissed.
33The Court found that the applicant demonstrated a complete inability to understand the accident benefits scheme and represent herself. It was a complicated claim on which she wished to be represented by a lawyer, and she had quickly retained replacement counsel to seek an adjournment of the hearing so they could properly act for her. The Court noted that the applicant’s prior lawyer did not seem to have subpoenaed witnesses or arranged for witnesses to be present on her behalf. The Court determined, in the unusual circumstances of this case, that the matter should be remitted back to the Tribunal for a new hearing on the merits.
34In this case, although catastrophic impairment is not at issue and there is no suggestion of a breakdown in the solicitor-client relationship, I nonetheless find the principles in Fernandez apply.
35Here, the applicant’s new counsel was requesting an adjournment so that he could have more time to prepare for the hearing, because the former representative was no longer able to act due to illness. The affidavit in evidence before the Tribunal indicated that these circumstances had only become known on Friday, July 11, 2025. Mr. O’Connor emailed the Tribunal three days later, on Monday, July 14, 2025, to indicate that he would be requesting an adjournment, on consent. He was advised by the Tribunal that the request would be heard at the hearing on Wednesday, July 16, 2025.
36I appreciate that the circumstances in this case were unusual in that Mr. Maludzinski’s hospitalization seems not to have been known by his colleagues at his law firm until July 11, 2025, only five days before the hearing. I also acknowledge that there was information not in evidence that the adjudicator believed was of relevance to his determination under Rule 16.2.
37However, in my view, by rejecting the applicant’s evidence of the need and circumstances giving rise to the adjournment request, the Tribunal misconstrued the requirements of Rule 16.2, leading to a material breach of procedural fairness. The applicable test is not whether the applicant should have known, but rather whether he did not and could not have known of the circumstances giving rise to the adjournment request prior to the event. Although the Tribunal may have wished to have further information about the details of the situation, it did not have this information. In my view, the absence of evidence of steps the former representative took, or should have taken, to arrange for representation for the applicant as a result of his illness and hospitalization, is not determinative of the request under Rule 16.2. The evidence that was before the Tribunal indicates that the applicant’s former representative was in hospital, and this fact had only become known to his colleagues on July 11, 2025. As the applicant’s former representative did not share this information until July 11, 2025, the applicant could not have known earlier.
38The result of denying the request for an adjournment was, as in Fernandez, that the applicant did not call any witnesses, was found not to have met their burden, and the application was dismissed. In my view, this is a material breach of procedural fairness, and it warrants a rehearing of the issues in dispute, as was ordered in Fernandez.
39In reaching this conclusion, I have considered the respondent’s submission that no new evidence has been provided on reconsideration and that this is essentially a reweighing of the evidence, which is not permitted on reconsideration. I find, however, for the reasons set out above, that the Tribunal made a decision that resulted in a material breach of procedural fairness. This is not an evidentiary question or a reweighing of the evidence. Further, I note that the respondent reiterates in its reconsideration submissions that it consented to the initial adjournment request, although it also notes that it accepts the Tribunal’s decision.
40I have also considered the applicant’s references to the Tribunal’s alleged “internal metrics”. This submission is made without any evidentiary basis. This type of submission calls into question the adjudicator’s integrity and independence, and that of the Tribunal as a whole. It is improper. I reject the implication about the adjudicator’s motivation in denying the adjournment request.
41I find, for the reasons set out above, that the applicant has established grounds for reconsideration pursuant to Rule 18.2(a).
Outcome of Reconsideration - Rule 18.4
42Pursuant to Rule 18.4, I am cancelling the decision and ordering a rehearing of the issues in dispute before a new adjudicator.
43As noted above, the applicant submits that the outcome of the reconsideration should be that the Tribunal reverse its decision on the issues in dispute, or in the alternative, schedule a new oral hearing of the application.
44As no evidence was heard at the hearing, there is no basis upon which to reverse the Tribunal’s decision on the issues in dispute. Therefore, I decline the applicant’s request for an order that would grant the applicant entitlement to the issues in dispute. Rather, having found grounds for reconsideration based on a material breach of procedural fairness, I am cancelling the decision and ordering a rehearing of the issues before a new adjudicator.
CONCLUSION & ORDER
45The applicant’s request for reconsideration is granted.
46Pursuant to Rule 18.4, I am cancelling the decision, and I am ordering a rehearing of the issues in dispute before a new adjudicator.
47Within 30 days of the release of this decision, the Tribunal shall canvass the parties for a new one-day videoconference hearing date. The hearing date shall be set by the Tribunal.
48The procedural orders set out in the CCRO released on January 24, 2025, apply to the rehearing. I am not seized of the rehearing.
49If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
E. Louise Logan
Vice-Chair
Released: November 19, 2025