Her relationship with her lawyer broke down, so the hearing proceeded with her unrepresented
The Ontario Superior Court of Justice has ordered a new hearing in a personal injury case after the Licence Appeal Tribunal (LAT) dismissed the appellant’s case despite her lack of legal representation.
In Fernandez v. Commonwell Mutual Insurance, 2024 ONSC 5180, the appellant was injured in a car accident and claimed she was denied procedural fairness during a hearing. She sought an adjournment due to a breakdown in her relationship with her lawyer, but the request was denied, and the hearing proceeded with her unrepresented.
The case arose after the appellant, who was injured as a pedestrian, requested an adjournment just before her hearing. She sought additional benefits under the catastrophic impairment designation but experienced a last-minute breakdown with her legal counsel. Despite this, the adjudicator at the LAT denied the adjournment request, citing multiple factors in favour of proceeding, including previous adjournments and the importance of hearing the matter on its merits.
The appellant, now unrepresented, could not meet her burden of proof, and her claim was dismissed on 13 separate issues. She appealed the decision, arguing that she was denied procedural fairness.
The Superior Court, while acknowledging the LAT’s wide authority over its process, found that the appellant did not receive a fair hearing. The court noted that the appellant struggled to understand the accident benefits scheme and lacked the ability to represent herself effectively, despite the assistance of an interpreter. She had expressed a desire to be represented by a lawyer and had quickly sought replacement counsel, who then requested an adjournment.
Commonwell, the insurance provider involved in the case, had consented to the adjournment on certain terms and even raised concerns about fairness during the hearing. The court further noted that the appellant’s previous lawyer failed to subpoena witnesses or arrange for them to testify on her behalf, and the appellant was not informed she could call evidence.
LAT has since conceded that the case should be remitted for a new hearing. The court allowed the appeal, remitting the case back to LAT for a fresh hearing to ensure the matter is determined fairly on its merits.
