Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 16-000338/AABS
Case Name: 16-000338 and The Personal Insurance Company
Written Submissions By:
For the Respondent: Pamela D. Vlasic, Desjardins, Claims Legal Counsel
For the Applicant: William Lu, Taylor, Baber & Associates
Overview
1On October 20, 2016, the Licence Appeal Tribunal (the “Tribunal”) issued an Order following a Motion in S. G. and The Personal Insurance Company. The order excluded an audio recording (the “recording”) from being admitted as evidence at the upcoming hearing. The recording was made by the applicant while attending an insurer’s examination conducted by Dr. Mascarenhas on January 16, 2015.
2On November 10, 2016, the applicant requested a reconsideration of the Tribunal’s order and that the October 20, 2016 be set aside. The applicant also requested that the reports of Dr. Mascarenhas be admitted as “fresh evidence” at the hearing.
3The applicant’s request for reconsideration is based on the following:
- The Tribunal breached the rules of natural justice and procedural fairness by making a decision without having key documents before it and without advising the parties of the deficiency; and
- The Tribunal made several significant errors in law such that the Tribunal would likely have reached a different decision.
4On November 30, 2016, the respondent provided submissions in response to the request.
5For the reasons that follow, I deny the applicant’s request for reconsideration.
Discussion and Reasons
6The criteria for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, which states that the Executive Chair will not grant a request for reconsideration unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
7The October 20, 2016 Tribunal decision found that the applicant’s recording was not relevant to the issues that need be decided at the hearing. The Tribunal made the following order:
After considering the evidence, pursuant to the authority vested in the Tribunal under s.280 (2) of the Act, the Tribunal orders that the tape recording is not allowed into evidence and will be excluded from the proceedings.
Did the Tribunal act outside its jurisdiction or violate the rules of natural justice or procedural fairness?
8The applicant submits that the Tribunal breached the rules of natural justice and procedural fairness by making a decision without having key documents before it and without advising the parties of the deficiency. The applicant asserts that the Tribunal did not have the reports of Dr. Mascarenhas before it at the motion. The applicant submits that the reports were inadvertently omitted and that counsel “assumed that the Reports had already formed part of the Motion Record” as they had been submitted as part of the case conference materials.
9The applicant submits that the adjudicator was not able to make a decision without the reports of Dr. Mascarenhas and therefore should have adjourned the motion and advised the parties that the reports were not before her.
10In response, the respondent submits that the reports were not omitted by inadvertence and that the adjudicator made the parties aware of the fact that she did not have them at the motion. The applicant did not raise it as an issue at that time. Further, the respondent submits that the reports were not relevant to the issues in dispute at the motion.
11In paragraph 13 of the decision the Tribunal found the following:
I am persuaded by the Insurance Company’s reply submissions that the purpose of the recording was to assess the credibility of the examiner, which can be accomplished through the evidence of the parties at the hearing.
12The Tribunal provided reasons for why the applicant failed to demonstrate that the recording was relevant and concluded that the issue dealt with the question of credibility and that this could be dealt with through testimony and cross-examination.
13I find that the Tribunal acted within its jurisdiction in determining the relevance of the evidence and exercised its powers under section 15 of the Statutory Powers Procedure Act (“SPPA”)1 which allows it to make decisions regarding the relevance and admissibility of evidence at a hearing. It is of note that the adjudicator made it clear to the parties that she would be the adjudicator assigned to the upcoming hearing of the substantive issues as well.
Did the Tribunal make a significant error in law such that the Tribunal would likely have reached a different decision?
Test for relevance
14The applicant submits that the general rule for the admissibility of evidence is that it must be relevant. In this case, the Tribunal held that: “the applicant has presented insufficient evidence in establishing that the recording is relevant to the proceedings.”
15The applicant submits that the Tribunal erred in law by deciding on the admissibility of evidence without first determining the probative value of the evidence.
16Again, I find that Tribunal provided reasons for why the applicant failed to demonstrate that the audio recording was relevant. Further, the Tribunal concluded that the issue dealt with the question of credibility and that this could be dealt with through testimony and cross-examination.
Expert Witness
17The applicant submits that the Tribunal erred in concluding that an “expert report needs to only contain relevant information to support the assessor’s conclusion” and an expert witness has discretion to disregard information not supportive of his conclusion.
18I find that this is not an accurate reflection of the Tribunal’s finding. I agree with the portion of the applicant’s submission that states an “expert has the discretion to disregard information irrelevant to the issues in the proceedings.” This statement is in line with the Tribunal’s finding in this case. In paragraph 12 of the October 20, 2016 decision, the Tribunal found that:
An assessment report is not meant to be a transcript of the examination but instead should contain relevant information to support the assessor’s conclusion. …
If these statements are not relevant to the doctor’s conclusion there is nothing in the SABS or case law that obligates the doctor to include this information in his report. The doctor came to a conclusion and in the report wrote information or arguments to support his position. Simply because a doctor does not put all information that was put in front of him in his report, does not necessarily mean the report is inaccurate or has led to misconduct. Moreover, the Applicant can address these allegations at the hearing through testimony of the witnesses.
Ability to Cross Examine
19The applicant submits that the Tribunal erred by improperly limiting the applicant’s ability to cross-examine a witness’ credibility. By excluding the recording evidence without considering whether the probative value outweighs its prejudicial effect, the Tribunal improperly limited the scope of the applicant’s cross-examination.
20The applicant submits that the Tribunal erred in law because the applicant is not able to put forth any questions to the expert witness on cross-examination that relates to inadmissible evidence. Therefore, if the recording is excluded then the applicant will not be able to question the witness’ credibility.
21I agree with the respondent’s submission that the Tribunal found that the purpose of the recording was to assess the credibility of Dr. Mascarenhas and that this can be accomplished at the hearing through the evidence of the parties.
22The applicant can provide oral testimony at the hearing regarding the assessment and his interactions with the doctor and then cross-examine the doctor on any alleged discrepancies.
Request to Admit Reports
23The applicant also requested that the Reports of Dr. Mascarenhas be admitted as “fresh evidence on Appeal.” The October 20, 2016 decision makes no order on the admissibility of the doctor’s reports. As such, I make no finding on this request, as it is an issue to be decided at the hearing.
Conclusion
24For the reasons set out above, I am not satisfied that the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness. Further, I am not satisfied that the Tribunal made a significant error of law or fact in this case.
25Based on the above, I therefore deny the applicant’s request for reconsideration.
Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario
Released: December 22, 2016