Deciding adjournments: Case highlights how LicenceAppeal Tribunal favours expediency over fairness
Originally published on Law 360 Canada
The Ontario Divisional Court recently released its decision in Fernandez v. Commonwell Mutual Insurance, 2024 ONSC 5180, in which it unanimously decided that the Licence Appeal Tribunal unfairly denied the applicant’s request for an adjournment, which was on consent (with terms).
In Fernandez, the applicant had requested an adjournment to permit time for her newly appointed lawyer to receive and review the file. Unfortunately, the applicant had experienced a breakdown in the relationship with her previous lawyer days before the hearing. Nonetheless, the applicant managed to retain new counsel in a very short time frame. The hearing was to address numerous issues, including whether or not the applicant was catastrophically impaired.
The adjudicator denied the request, which ultimately resulted in the applicant having to proceed with the hearing, self-represented and unprepared. The adjudicator then proceeded to find in favour of the insurer on all issues in dispute.
In denying the adjournment request, the adjudicator found the five previous adjournments (only one of which was for the hearing), the age of the file and the fact the hearing was marked peremptory outweighed the prejudice to the applicant, the applicant’s desire to be represented by counsel andthe fact the consequences of the hearing were serious. The applicant appealed the decision to the Divisional Court.
The Divisional Court allowed the appeal. The court stated that while the tribunal has wide authority to control its own process, the appeal should be allowed because the court was not satisfied that the appellant received a fair determination of her matter on its merits.
In fact, the Divisional Court noted that “the appellant demonstrated a complete inability at the hearing to understand the accident benefits scheme and represent herself” and her “inability to meaningfully act for herself was apparent to such an extent that counsel for Commonwell raised fairness concerns during the hearing about the matter proceeding.” This decision of the Divisional Court confirms that forcing a matter ahead in the name of expediency should not come at the price of procedural fairness.
Unfortunately, Fernandez is not the first time the tribunal has denied a request for an adjournment on consent and the applicant has been forced to proceed with the hearing unrepresented and/or unprepared
In Z.P. v. Guarantee Insurance, the applicant requested an adjournment of a written hearing due to her counsel having to take an unexpected medical leave. Medical evidence was provided to the tribunal in support of the adjournment request. The respondent consented and there was a timetable put in place for the new hearing. Not allowing the adjournment would essentially have required the applicant to either retain new counsel in an unrealistically short period or proceed without legal representation.
Nevertheless, the request was denied. The applicant applied for reconsideration.
Vice-chair Heather Trojek granted the reconsideration request. Trojek found the adjudicator wrongly applied the Rules in a strict and narrow fashion, and she failed to consider and balance all of the relevant factors at issue. Her approach failed to accord with the principles of natural justice and procedural fairness.
In 18-004395 (M.J.) v. TD Home and Auto Insurance Company, Trojek overturned another denied consent adjournment request. In doing so, Trojek reiterated that the tribunal must balance its mandate with the principle of procedural fairness. She explained that proceeding expediently is only one component of the tribunal’s mandate. The tribunal is also required to secure a just and cost-effective determination of every proceeding on its merits. Trojek encouraged a practical and flexible approach.
In Soso v. Jevco Insurance, 2023 ONLAT 22-008667/AABS, the applicant requested an adjournment in advance of his upcoming hearing. The applicant indicated he was currently sick with COVID-19 and needed more time to retain counsel since his previous counsel got off record three months prior. He unfortunately failed to send a copy of the request to opposing counsel, so the adjournment request was denied.
When the request was again raised at the hearing, the adjudicator indicated the applicant had sufficient time to retain new counsel and found no compelling reason to grant the adjournment. The applicant was forced to proceed with the hearing and was forced to represent himself while unwell and wholly unprepared. He had never previously requested an adjournment of the hearing. The adjudicator subsequently found in favour of the insurer on all issues in dispute.
In Dipietro v. Aviva General Insurance Company, 2024 ONLAT 21-006395/AABS, the applicant’s counsel requested a consent adjournment due to health issues. He had previously requested on adjournment for the same medical issue and the hearing was pushed a few months at that time. He requested a second adjournment indicating his health was still poor.
The applicant submitted into evidence a medical note from a doctor that stated that the doctor recommended that he greatly diminish his workload including participation in trials for the indefinite future. He also submitted that he had consulted with another law firm to take on the file approximately six to eight weeks prior; however, no commitment or decision had been made.
The request for an adjournment was denied, the lawyer was forced to proceed (in the absence of the applicant), and he was ultimately forced to withdraw the applicant’s application. The above cases are just a few examples, specific to legal representation, that demonstrate an overly strict and narrow approach to the Rules as it relates to adjournment requests. Consent to an adjournment request should not be overlooked or undervalued. It reflects the reasonableness of the request by the requesting party and the lack of prejudice to the responding party. While there maybe cases where adjournment requests are used improperly or in an obstructionist way, those are unlikely to be requests made on consent.
The Statutory Accident Benefits Schedule is a complex system that is very difficult for the average person to navigate. This becomes increasingly complicated when you add in the tribunal’s Rules, presentation of evidence and hearing procedures. Forcing an applicant to represent themselves (or forcing their representative to proceed unprepared) is hugely prejudicial and procedurally unfair. Expediency should not reign supreme.
In August 2023, the tribunal’s Rules were revised to include Rule 16.3, which lists a number of factors that adjudicators can consider when considering adjournment requests. However, this was essentially just a codification of the factors outlined by the Ontario Court of Appeal in 2009 in Igbinosun v. Law Society of Upper Canada and, ultimately, has not changed the tribunal’s approach to adjournment requests.
About the Authors
A born-and-raised Barrie resident, Karen knows and loves her community. She is proud to be a partner in one of Canada’s most successful personal injury law firms—right in her own backyard. Karen joined Oatley Vigmond in 2013 as an associate lawyer. She holds a BA from Queen’s University and her Juris Doctor from Bond University in Australia. Prior to being called to the Bar in January 2013, Karen articled at a well-known personal injury law firm in Toronto.