CITATION: Intact Insurance Company v. Lanziner-Brackett, 2018 ONSC 6546
DIVISIONAL COURT FILE NO.: 123/18
DATE: 20181031
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MORAWETZ R.S.J., MULLINS and MATHESON JJ.
BETWEEN:
INTACT INSURANCE COMPANY
Appellant
– and –
LIANNE LANZINER-BRACKETT
Respondent
COUNSEL:
Eric K. Grossman, for the Appellant
Agatha Dix, for the Respondent
HEARD at Toronto: October 31, 2018
MATHESON J. (Orally)
[1] The Appellant Intact Insurance Company appeals from the February 2, 2018 decision of the Licence Appeal Tribunal (“LAT”) arising from a preliminary issue hearing.
[2] The Appellant submits that Adjudicator Flude of the LAT erred in law in changing the preliminary issue, premising his decision on an error regarding the Appellant’s position and deciding that the whole incident at issue constituted an “accident” as defined by s. 3(1) of the Statutory Accident Benefits Schedule (“SABS”).
[3] The incident arose in November 2014. The Respondent was at work for a television show production company. She was responsible for supervising three reserved parking spots and ensuring that the spots were available for production vehicles. Two of the spots were occupied by trucks. An individual pulled into the third parking spot and the Respondent approached the car and told the driver that he was not allowed to park there. The individual proceeded to open the car door, bumping the Respondent. He opened the door a second time, hitting the Respondent more forcefully and hitting her forearms and left knee. The Respondent retreated from the car and the individual got out of the car, shut the door and punched the Respondent in the face three times. He was later convicted of assault.
[4] The Respondent made a claim under the SABS. The Appellant accepted her claim insofar as it related to being hit with the car door but denied the claim as it related to the punches to her face on the basis that it was not properly considered an “accident” under s. 3(1) of the SABS.
[5] The Respondent pursued her claim at the LAT. There was a Case Conference, at which the insurance company (now the Appellant) requested a preliminary issue hearing. The Adjudicator set out the issue to be determined as follows: “Whether or not the incident of November 5, 2015 [sic] qualifies as an accident as defined by s. 3(1) of the Statutory Accident Benefits Schedule.” On consent, the parties agreed to a written preliminary issue hearing to determine this issue.
[6] The preliminary issue hearing was scheduled for September 2017, and was heard in writing by Adjudicator Flude.
[7] The decision was released on February 2, 2018. This is the order under appeal.
[8] In his decision, Adjudicator Flude began by restating the issue. He said that his difficulty with the issue before him was that it failed to clarify the true nature of the dispute. He indicated as follows: “What is actually in dispute is the question of whether the various impairments the applicant [now the Respondent] alleges she sustained as a result of the incident fall within the no-fault compensation scheme set out in the Schedule.”
[9] The Adjudicator restated the issue as follows: “Were the applicant’s impairments allegedly sustained on November 25, 2015 [sic] sustained as the result of an accident as that term is defined in s. 3(1) of the Schedule?
[10] The Adjudicator did not communicate the restated issue to the parties prior to releasing his decision.
[11] In addressing the restated issue, the Adjudicator discussed case law and also the evidence. He indicated that on the facts before him, he could not neatly divide the Respondent’s impairments into separate categories. He held as follows: “There is no evidence on this preliminary motion that all of the long term impairments suffered by the applicant were caused solely by the assailant’s actions outside of the vehicle.”
[12] The Adjudicator concluded that the whole process constituted a continuous affront to the applicant’s well-being from which she appeared to have emerged with psychological impairments, finding that the whole incident was an “accident” under the SABS.
Appeal/Standard of Review
[13] This is an appeal under s. 11(1) of the License Appeal Tribunal Act, 1999, S.O. 1999, c. 12. Under s. 11(6), the appeal may only be made on a question of law.
[14] The standard of review is reasonableness, except for questions regarding procedural fairness. For procedure fairness, the issue is whether or not the requisite level of procedural fairness was provided.
Issues
[15] The Appellant raised the following issues on this appeal:
(1) Did the LAT err in law in arbitrarily restating the question to be decided at the preliminary hearing, breaching the obligation of procedural fairness?
(2) Did the LAT err in law in the interpretation of “accident” in s. 3 of the SABS?
(3) Did the LAT misapprehend the evidence and facts to such a degree that it amounted to an error of law, mainly by premising his decision on an error regarding the Appellant’s position?
Procedural fairness
[16] We asked the parties to begin by addressing the procedural fairness issue.
[17] The Appellant submits that Adjudicator Flude breached the principles of natural justice and procedural fairness by restating the issue for the preliminary hearing, despite the fact that the parties had agreed on the written preliminary issue hearing based on a different issue. The Appellant submits that it was denied participatory rights by not having notice of the issue to be heard, and thereby not knowing the case to be met.
[18] The Appellant argues that if it had known the restated issue, it would have had an impact on whether the Appellant would have agreed to a preliminary hearing, whether it would have agreed to have the hearing proceed by way of written submissions, and the nature and extent of the evidence put before the Adjudicator.
[19] The Respondent submits that Adjudicator Flude did not raise a new issue, but simply clarified the issue in dispute.
[20] We are not persuaded that the change in the restated issue was immaterial. The Adjudicator himself said that the issue set at the Case Conference failed to clarify the true nature of the dispute. The impact of the change is evident from the decision itself, where the Adjudicator finds that there was no evidence on relevant matters regarding long term impairments.
[21] The Case Conference decision to have a written preliminary issue hearing was on consent. If the Adjudicator had a problem with the issue fixed at the Case Conference, which formed the foundation of this consent, that problem ought to have been raised with the parties rather than being changed unilaterally. Restating the question without notice to the parties denied the Appellant the right to fairly put forward its relevant evidence and argument for the preliminary issues hearing.
[22] Given this denial of procedural fairness, we conclude that the appeal should be granted.
[23] The Appellant requests that this Court proceed to decide the merits on the written record before us. That is not the role of this Court. These disputes are to be determined before the LAT in the first instance.
[24] We therefore quash the decision appealed from and remit the matter back to the LAT at the Case Conference stage. Further, that Case Conference and whatever hearings take place shall be before a different adjudicator. In the circumstances, it is not necessary to deal with the other issues on this appeal.
MORAWETZ R.S.J.
[25] I have endorsed the Appeal Book and Compendium of the Appellant as follows: “This Appeal is allowed. The decision is quashed and remitted back to the Licence Appeal Tribunal, at the Case Conference stage, before a different adjudicator. Costs awarded to the Appellant, in the agreed amount of $3,500, all inclusive.”
___________________________ MATHESON J.
I agree
MORAWETZ R.S.J.
I agree
MULLINS J.
Date of Reasons for Judgment: October 31, 2018
Date of Release: November 1, 2018
CITATION: Intact Insurance Company v. Lanziner-Brackett, 2018 ONSC 6546
DIVISIONAL COURT FILE NO.: 123/18
DATE: 20181031
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MORAWETZ R.S.J., MULLINS and MATHESON JJ.
BETWEEN:
INTACT INSURANCE COMPANY Appellant/Insurer
– and –
LIANNE LANZINER-BRACKETT Respondent/Injured Person
ORAL REASONS FOR JUDGMENT
MATHESON J.
Date of Reasons for Judgment: October 31, 2018
Date of Release: November 1, 2018