Highlights of Noteworthy Decisions

Decision 2713 16 R
23/04/2020
R. Nairn
  • Procedure (right to sue)
  • Reconsideration (natural justice)
  • Right to sue

The defendants in a civil case applied to determine whether the plaintiff's right of action was taken away regarding a motor vehicle accident in 2001. Neither the plaintiff nor her representative appeared at the hearing. In the circumstances, the vice-chair in Decision No. 2713/16 proceeded with the hearing and found that the plaintiff was in the course of employment at the time of the accident and that, accordingly, her right of action was taken away.

The plaintiff applied for reconsideration of Decision No. 2713/16. The plaintiff submitted that her previous representative did not notify her about the proceeding and that the plaintiff only learned about the Tribunal decision many months later.
The Tribunal practice direction on Right to Sue Applications provides that, as a matter of general practice, it is not advisable to reconsider right to sue applications unless a completed request to reconsider is received within 40 days of the date of decision.
In this case, the Tribunal was first notified of the plaintiff's desire to reconsider Decision No. 2713/16 when it received correspondence from the plaintiff's current representative in January 2018, about 13 months after Decision No. 2713/16 was released. While the delay in notifying the Tribunal was well beyond the 40-day time limit, delay, in and of itself, ought not to be a ground for refusing to accept a reconsideration request. In this case, the Vice-Chair was satisfied that, given the exceptional circumstances, it was advisable to consider the reconsideration request.
It was not until July 2017, that the plaintiff became aware that there had been a right-to-sue application heard by the Tribunal and that Decision No. 2713/16 had been issued, taking away her right of action. There was a further delay of about six months until the matter was brought to the Tribunal's attention in January 2018. During this period from July 2017 to January 2018, the plaintiff continued to express an intention to continue with her civil action. After becoming aware of what had transpired in Decision No. 2713/16, the plaintiff was diligent in pursuing the matter of her civil action. The further delay was due to understandable complications that arose dealing with a number of lawyers and the Law Society of Ontario. These issues were further complicated by the plaintiff's health at the time.
The Vice-Chair concluded that the failure to provide the plaintiff with an opportunity to participate in the right-to-sue application amounted to a denial of natural justice warranting the reopening Decision No. 2713/16.
The defendants submitted that reconsideration should not be granted unless correction of the error would likely have produced a different result had that error not occurred However, the Vice-Chair agreed with Decision No. 272/08R that a reconsideration request should not be turned down when there has been a fundamental error of process, even though it cannot be demonstrated that the decision would probably have been different.
The application to reconsider was granted.