[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Fernandez v. Commonwell Mutual Insurance, 2024 ONSC 5180
DIVISIONAL COURT FILE NO.: DC-24-00000048-0000
DATE: 20240919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Myers and Stothart JJ.
BETWEEN:
OFELIA FERNANDEZ
Appellant
– and –
COMMONWELL MUTUAL INSURANCE AND LICENSE APPEAL TRIBUNAL
Respondents
Julia Volorio Peguero for the Appellant
Cynthia Verconich and Aryn Polichuk, for the Respondent, Commonwell Mutual Insurance
Jesse Boyce for the Respondent, Licence Appeal Tribunal
HEARD in Toronto: September 18, 2024, by video conference
REASONS FOR DECISION
BACKHOUSE J.
[1] The appellant sought an adjournment of her hearing of whether to grant her a catastrophic impairment designation and other benefits as a result of a car accident. The appellant was a pedestrian when she was injured by a car. She asked for an adjournment of the hearing because of the breakdown of her solicitor-client relationship on the eve of the hearing.
[2] The appellant appeals the denial of the adjournment on the ground that she was denied procedural fairness.
[3] Commonwell consented to the appellant’s request for an adjournment on terms. The adjudicator refused the adjournment on the ground that the factors in favour of proceeding outweighed those that supported an adjournment, namely: the number of previous adjournments, the hearing was marked peremptory and the desirability of having the matter heard on its merits. The hearing proceeded with the appellant unrepresented in regard to thirteen identified issues. The appellant was found not to have met her onus and her claim was dismissed.
[4] While we agree that the LAT has wide authority to control its own process, we allow the appeal because we are not satisfied that the appellant received a fair determination of her matter on its merits.
[5] The appellant demonstrated a complete inability at the hearing to understand the accident benefits scheme and represent herself. She had limited proficiency in English (although an interpreter was provided). It was a complicated claim on which she wished to be represented by a lawyer and quickly retained replacement counsel to seek an adjournment of the hearing so they could properly act for her. The appellant’s inability to meaningfully act for herself was apparent to such an extent that counsel for Commonwell, to her credit, raised fairness concerns during the hearing about the matter proceeding.
[6] The appellant’s prior lawyer did not seem to have subpoenaed witnesses or arranged for witnesses to be present to give evidence on her behalf. A review of the transcript of the hearing does not indicate that the appellant was advised that she could call evidence.
[7] Indeed, LAT concedes that the matter should be remitted back to the LAT for a fair determination on the merits at a new hearing. I make no finding about the weight to be accorded to the tribunal’s position on the outcome of a proceeding in this court.
[8] I am satisfied that the conflict of interest issue raised by Commonwell with respect to the appellant’s lawyer has been resolved.
[9] In the unusual circumstances of this case, the appeal is allowed. The matter is remitted back to the LAT for a new hearing on the merits with the LAT to determine the appropriate process going forward.
[10] In accordance with the agreement of the parties, the appellant is entitled to costs from Commonwell in the amount of $6,000.
___________________________ Backhouse J.
I agree: ___________________________ Myers J.
I agree: ___________________________ Stothart J.
Date: September 19, 2024
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Fernandez v. Commonwell Mutual Insurance, 2024 ONSC 5180
DIVISIONAL COURT FILE NO.: DC-24-00000048-0000
DATE: 20240919
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Myers and Stothart JJ.
BETWEEN:
OFELIA FERNANDEZ
Appellant
– and –
cOMMONWELL MUTUAL INSURANCE and LIcence appeal tribunal
Respondents
REASONS FOR DECISION
BACKHOUSE J.
Date: September 19, 2024