The Appeal

[1] This is an appeal from the decision of Adjudicator Tavlin Kaur (“the adjudicator”) of the Licence Appeal Tribunal (“LAT”) dated April 7, 2022 (“the order”). The adjudicator denied the Appellant’s motion to convert a scheduled videoconference hearing to a written hearing (“the motion”); the adjudicator went on to rule that the Appellant was not entitled to certain medical and rehabilitation benefits (“the benefits”) under the Statutory Accident Benefits Schedule – Effective September 2010, O. Reg. 34/10 (the “SABS”) of the Insurance Act, R.S.O. 1990, c. I.8.

[2] The grounds for the appeal are that the Appellant was denied procedural fairness and natural justice when the adjudicator denied her request. As well, the Appellant submits that the adjudicator exhibited bias against both the Appellant and her counsel in her handling and disposition of the motion.

[3] For the reasons that follow, I would dismiss the appeal.

Background

[4] The Appellant was involved in a motor vehicle accident on December 9, 2017. She claimed insurance benefits through her insurer, the Respondent Aviva.

[5] Following a denial of certain benefits, the Appellant applied to the LAT for dispute resolution. After proceeding through a case conference and several proposed but adjourned hearing dates, the dispute was assigned a videoconference hearing date of March 7-9, 2022 (“the hearing”).

[6] On March 3, 2022, the Appellant served and filed the motion to change the format of the hearing from videoconference to a written hearing. The LAT scheduled the motion to be heard on March 7, 2022.

The LAT Motion and Hearings

The Hearing

[7] The motion was argued at the outset of the scheduled hearing. The Appellant was represented by counsel at the hearing. The Appellant did not attend. The adjudicator dismissed the motion, ordered the hearing to proceed, and then dismissed the application when the Appellant’s counsel declined to file or call any evidence. The adjudicator then issued a written ruling on April 7, 2022, which both encapsulated and elaborated upon her decision at the hearing.

The Reconsideration

[8] The Appellant sought reconsideration by the LAT. In support of that reconsideration request, the Appellant submitted new evidence, that being a note from a Dr. Syeda touching upon the Appellant’s psychological state. In a decision dated August 22, 2022, the same adjudicator dismissed the request for reconsideration (“the reconsideration decision”).

[9] The Appellant asks that the adjudicator’s orders be set aside and that the matter be remitted to the LAT for hearing by a new adjudicator.

[10] The Appellant has not appealed the reconsideration decision. This is somewhat problematic since the adjudicator did allow and consider the new evidence in that process. The Appellant has pointed to nothing in the reconsideration hearing or in the reconsideration decision which could ground a finding of denial of natural justice, procedural unfairness, or reasonable apprehension of bias.

[11] In the interest of justice and finality, I am prepared to overlook this irregularity and to treat the within appeal as encompassing both the adjudicator’s order and the reconsideration decision.

Jurisdiction and Standard of Review

[12] The LAT has exclusive jurisdiction under s. 280(1) of the Insurance Act to resolve any disputes in respect of an insured person’s entitlement to statutory accident benefits.

[13] Pursuant to ss. 11(1) and (6) of the Licence Appeal Tribunal Act, S.O. 1999, c. 12 Sched. G, (the “LAT Act”), an appeal lies to this court on a question of law only.

[14] It is well established that procedural fairness is a question of law. The standard of review on a question of law is correctness.

The Motion and the Hearing

[15] At the outset of the hearing the adjudicator considered whether the motion should be heard over the objection of Aviva who raised the issue of short service.

[16] The adjudicator allowed the motion to proceed but granted counsel for Aviva an opportunity to prepare a response.

[17] The request to have the hearing converted from a videoconference to a written hearing arose from the Appellant’s stated medical/psychological condition which left her unable or unwilling to participate in a videoconference hearing.

[18] There was no affidavit filed in support of the motion. The Appellant was not present at the hearing. Counsel for the Appellant simply outlined before the adjudicator the information and instructions he had received from his client. Counsel also relied upon a medical report of a psychologist dating from July of 2018 which referred to the Appellant suffering from post-traumatic stress disorder.

[19] The adjudicator noted that by requesting a written hearing, the Appellant’s counsel was conceding that the Appellant’s testimony was not required.

[20] After hearing submissions from both counsel, the adjudicator expressed a preliminary concern with the insufficiency of evidence in support of the Appellant’s alleged condition, in particular, with the lack of current medical evidence which would substantiate what was stated in counsel’s submissions. The adjudicator nonetheless canvassed a number of options for how the matter might proceed in light of the Appellant’s reported challenges:

a. the Appellant could withdraw the application;

b. the hearing could proceed by videoconference without the Appellant having to testify; or

c. the proceeding could proceed as a written hearing but with the issue of costs thrown away by the insurer to be addressed.

[21] The adjudicator then briefly recessed the hearing and requested that counsel for the Appellant seek instructions in respect of those options.

[22] When the matter resumed, counsel for the Appellant advised that he was unable to secure instructions to select one of the three options. The adjudicator then took a prolonged recess and returned with her decision:

a. she declined to convert the matter to a written hearing; and

b. the hearing would proceed by way of videoconference as scheduled.

[23] There followed a prolonged exchange during which the Appellant’s counsel reiterated several times that he could not proceed because he had no instructions to do so. There were two more brief recesses, one for the purpose of allowing the Appellant’s counsel to take a call from his office. He returned to the hearing shortly thereafter to confirm that he did not have instruction from his client to proceed.

[24] The adjudicator then directed the hearing of the application proper to commence. Counsel for the Appellant declined to make an opening statement or to call any evidence. Citing the absence of evidence and the onus on the Appellant to show entitlement to the benefits, the adjudicator dismissed the application.

The LAT

[25] It has long been an axiom of administrative law that specialized tribunals are best placed to select among available procedural options based on their balancing of the competing interests of expedition, cost-effectiveness, and full participation: see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 27.

[26] The LAT retains the following powers by virtue of these provisions of the Statutory Powers Proceedings Act, R.S.O. 1990, c. S.22 (SPPA):

a. to determine its own procedures and practices, and for that purpose to make orders with respect to the procedures and practices that apply in any particular proceeding: s. 25.0.1;

b. to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes: s. 23(1); and

c. to make orders or give directions at an oral or electronic hearing as it considers necessary for the maintenance of order at the hearing: s. 9(2).

[27] In considering procedural fairness at the administrative tribunal level in Rogers Communications Partnership v. Ontario Energy Board, 2016 ONSC 7810 (Div. Ct.) at para. 18, this court endorsed the following guidance from Sound v. Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R. 170 at para. 42:

[…] whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other.

[28] The Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (LAT Rules) contain a number of sections which address procedural fairness, accommodation, motions, adjournments and the effective and efficient resolution of disputes. These include:

Rule 3.1 - the liberal interpretation and application of the LAT Rules, which may be waived, varied, or applied to facilitate a fair, open, and accessible process and to allow effective participation by all parties, whether represented or not; to ensure efficient, proportional, and timely resolution of the merits of the proceedings; and to ensure consistency with the governing legislation and regulations;

Rule 7 - accommodation of parties, representatives and witnesses for Ontario Human Rights Code-related needs;

Rule 15 - motions, including the contents of a motion; the timing of a motion; serving and filing a motion; and when the motion may be heard by the LAT; and

Rule 16 - adjournments, including when and how they may be made and when oral requests may be made.

Analysis

The Hearing

[29] I have scrutinized the transcript of proceedings, paying particular attention to passages at pages 28, 42, 49, 54, 58, 59 and 60 which the Appellant contends demonstrate bias on the part of the adjudicator.

[30] I do not agree that the conduct of the hearing shows any bias on the part of the adjudicator. As well, the Appellant has failed to establish that she has been denied natural justice or procedural fairness.

[31] On the contrary, the adjudicator was eminently fair to the Appellant during the hearing:

a. she agreed to entertain the short-served motion;

b. she invited the Appellant to tender medical evidence which had not formed part of the motion materials;

c. in an effort to accommodate the Appellant’s condition, she canvassed several options for how the matter might proceed as scheduled;

d. she afforded counsel the opportunity to consult with his client and with senior counsel from his firm;

e. she allowed counsel ample opportunity to give submissions; and

f. she permitted counsel to explain the dilemma he faced in not being able to obtain instructions to proceed.

[32] I turn to the passages from the transcript specifically referred to.

[33] At pages 27- 28 there was an exchange between the adjudicator and the Appellant’s counsel concerning medical records to confirm the Appellant’s condition. The adjudicator inquired why medical evidence was not submitted with the motion. The adjudicator expressed concern over the need for proof and reminded Appellant’s counsel that he should know the importance of proof. There was no bias demonstrated by the adjudicator. There was no denial of natural justice and no procedural unfairness. The adjudicator was well within her right to request, and even demand, supporting evidence. Her suggestion to counsel that, as a lawyer, he should know this, was far from inappropriate. She was doing nothing more than maintaining control of the process before her. The adjudicator went on to consider the medical evidence which had not formally been filed in support of the motion.

[34] At pages 41-42 the adjudicator admonished Appellant’s counsel for failing to include sufficient evidence in support of the motion. There was nothing constituting bias here; the adjudicator was simply reminding counsel that it is a lawyer’s duty to procure evidence in support of a motion. There was no denial of natural justice or procedural fairness; in fact, by taking a recess at that point, the adjudicator afforded Appellant’s counsel an opportunity to secure evidence to support the request for accommodation.

[35] At pages 48 and 49 the adjudicator reminded Appellant’s counsel that she had ordered the matter to proceed on that day; she then questioned how it was that counsel did not have instructions to proceed. The adjudicator was properly maintaining control of the proceeding before her. She was entirely correct in doing so. The motion had been dismissed and there was an order that the hearing was to proceed. There was no hint of bias, procedural unfairness, or a denial of natural justice here. The adjudicator was moving the matter forward in line with her own order that the hearing would proceed by video conference as scheduled.

[36] At page 54, the discussion about client instructions continued. The adjudicator was entirely justified in reminding Appellant’s counsel that the matter was proceeding despite his insistence that he had no instructions to do so. The admonishment that counsel should have been prepared to proceed had his motion to convert been denied does not demonstrate any bias; nor was it procedurally unfair or a denial of natural justice. The adjudicator had heard the motion and denied the relief sought. It was entirely correct for her to move the matter along towards the commencement of the hearing proper.

[37] At pages 58-59 the discussion of instructions continued with the adjudicator questioning how Appellant’s counsel, as a member of the Law Society of Ontario, had not secured instructions to proceed. That was a fair inquiry in the circumstances; not only had the adjudicator already ruled against the Appellant on the motion; she had ordered the hearing to proceed as scheduled. Moreover, counsel admitted to understanding from the outset that his motion might be denied. The adjudicator’s reaction to the answers received expresses disbelief not disrespect. Again, there was no bias exhibited here; there was no procedural unfairness or denial of natural justice. Appellant’s counsel continued to insist that he could not proceed without instructions. The adjudicator, as she was entitled, did not accept that submission.

[38] At page 60, the adjudicator said that she found the answers from counsel about instructions “a little bit troubling” and she followed that up by saying “I’m not sure if I even believe it to be honest with you.” There was no bias in the adjudicator’s incredulity. There was certainly no denial of procedural fairness or natural justice. The adjudicator made known her doubts about the veracity of counsel’s submissions. She was entirely within her right to do so; receiving, considering and responding to submissions was entirely within her jurisdiction.

[39] On the issue of accommodation of parties, the adjudicator offered an option whereby the hearing would proceed by videoconference but without any need on the Appellant’s part to attend or give evidence. That option was not accepted. In my view, the adjudicator was correct and entirely fair in offering the Appellant the option of the videoconference hearing without the requirement for her to attend or testify. She was represented by counsel. The Appellant chose not to avail herself of those accommodations.

The Written Decision

[40] As for the adjudicator’s written reasons, there is no merit to the suggestion that the adjudicator exhibited bias, broke any rule of natural justice, or denied the Appellant procedural fairness. The written decision contains an accurate summary of the background of the dispute and the issues to be determined. The written reasons also consider the motion to convert; within that discussion, the adjudicator addresses the issue of human rights and accommodation. She reviewed the options that were offered and explored at the hearing designed to accommodate the Appellant’s stated challenges. The adjudicator went on to cite s. 25.0.1(a) of the SPPA which empowers a tribunal such as the LAT to make orders with respect to the procedures and practices that apply in any proceeding. Finally, the adjudicator explained how, in light of the onus on the Appellant to prove entitlement to benefits, and in the absence of any evidence advanced by the Appellant, the application was dismissed.

The Reconsideration Decision

[41] The Appellant pointed to nothing in the Reconsideration Decision which could give rise to an apprehension of bias, or a denial of procedural fairness or natural justice. Indeed, the reconsideration decision was not referenced on the notice of appeal; nor did Appellant’s counsel on appeal refer to the reconsideration decision.

[42] The adjudicator adequately reviewed the hearing of first instance, the dismissed motion, and the order to proceed with the hearing. In addition, the adjudicator permitted fresh medical evidence under Rule 18.2(d), which was reviewed and weighed. She was not persuaded that the new medical note could not have been made available at the hearing. She determined as well that the new evidence would not have affected the result.

[43] The adjudicator acted within her statutory mandate, cited the correct authorities on allegations of bias, and considered the reasons below; she determined that there was no evidence of bias and nothing to ground any finding of a denial of natural justice or procedural fairness.

Disposition

[44] I am not persuaded that the adjudicator, either at the hearing on in her written decision, demonstrated any bias. Nor is there anything to persuade me that any bias was exhibited in the reconsideration decision.

[45] Similarly, there is nothing to support the contention that the Appellant was denied procedural fairness or natural justice at the hearing, in the reasons of the adjudicator or at the reconsideration stage.

[46] The appeal is therefore dismissed. The parties agreed that costs would go to the successful party on the appeal in the amount of $7,500. That is a fair, reasonable, and proportional amount. The Appellant shall forthwith pay that amount to the Respondent for costs of the appeal.

McCarthy J.

I agree _______________________________

Lederer J.

I agree _______________________________

Matheson J.

Released: March 6, 2023

CITATION: Hutchinson v. Aviva General Insurance Company, 2023 ONSC 1472

DIVISIONAL COURT FILE NO.: DC-22-273-00

DATE: 20230306

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lederer, McCarthy, and Matheson JJ.

BETWEEN:

CAMILLE HUTCHINSON

Appellant

– and –

AVIVA GENERAL INSURANCE COMPANY

Respondent

REASONS FOR decision

Released: March 6, 2023

Camille Hutchinson v. Aviva General Insurance Company, 2023 ONSC 1472

Case Summary

The Appeal

Background

The LAT Motion and Hearings

The Hearing

The Reconsideration

Jurisdiction and Standard of Review

The Motion and the Hearing

The LAT

Analysis

The Hearing

The Written Decision

The Reconsideration Decision

Disposition

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 4