D.T. v Wawanesa Mutual Insurance Company, 2017 CanLII 144648

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

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RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Date: August 14, 2017

File: 16-000266/AABS

Case Name: D.T. v Wawanesa Mutual Insurance Company

Written Submissions By:

For the Applicant: Natalie Shykula-Clarke and Robert Seredynski

For the Respondent: Tessie Kalogeras

Overview

1. On April 24, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter originating under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The central issue in dispute: whether the applicant is entitled to an income replacement benefit (“IRB”) in the amount of $400 per week from August 1, 2015 to March 29, 2016. Based on the evidence before it, the Tribunal found that the applicant was not.

2. On April 21, 2017, the applicant asked me to reconsider the Tribunal’s decision. She argues that the Tribunal erred in a number of respects, described below. For the reasons that follow, I deny her request.

The Facts

The accident

3. The applicant, D.T., was injured in a motor vehicle accident in December 2013. At the time, she was 61-years-old and worked Saturdays as a cleaning assistant in a hair salon.

Wawanesa pays D.T. an IRB

4. After the accident, her family doctor, Dr. Mikhail, completed a Disability Certificate or OCF-3 indicating that, among other things, D.T. was substantially unable to perform the essential tasks of her employment. After receiving the OCF-3 and confirmation of D.T.’s employment, her insurer, Wawanesa Mutual Insurance Company (“Wawanesa”), began paying D.T. an income replacement benefit (“IRB”) of $70 per week.

5. Shortly after, in May 2014, Wawanesa invoked s. 44 of the Schedule and required D.T. to attend two examinations. The first was an Orthopaedic Surgeon Assessment by Dr. Zarnett, the second a Functional Capacity Evaluation by physiotherapist Dr. Westbrook. The purpose of both examinations, which were conducted later that month, was to determine whether D.T. suffered a complete inability to perform the essential tasks of her pre-accident employment.

D.T. exhausts the MIG limit

6. Also during May 2014, D.T. exhausted the MIG’s monetary limit. By Explanation of Benefits dated May 28, 2014, Wawanesa partially approved a Treatment and Assessment Plan dated February 24, 2014 in which D.T.’s chiropractor, Dr. Weinberg, recommended that D.T. receive chiropractic treatment and massage. Wawanesa agreed to pay $1255 of the $1380.12 requested. However, in doing so, it noted through an Explanation of Benefits that, after receiving this partial payment, D.T. had now received $3,500 in medical benefits, the maximum allowable under the MIG.

7. On July 9, 2014, Dr. Weinberg completed a further Treatment and Assessment Plan in which he again recommended that D.T. receive chiropractic treatment and massage services totalling $1,870.56. Wawanesa denied this plan, again explaining to D.T. that she had exhausted the MIG’s monetary limit of $3,500 for medical benefits.

Wawanesa terminates the IRB

8. A few weeks later, Wawanesa received the reports resulting from Dr. Zarnett and Dr. Westbrook’s examinations. Based on these reports, Wawanesa terminated D.T.’s IRB effective July 28, 2014.

Further claims for benefits

9. For the next 18 months, D.T. made no further claims.

10. However, beginning in January 2016, Wawanesa received the following four Treatment and Assessment Plans:

• a plan dated January 12, 2016, in which Dr. Ivana Starcevic, a chiropractor, recommended that D.T. receive mobilization and therapy at a cost of $2,612.14;

• a plan dated February 12, 2016, in which an occupational therapist, Alyssa Bierbrier, recommended that D.T. receive a total body assessment at a cost of $1,397;

• a plan dated March 29, 2016, in which Dr. Starcevic recommended manipulation and therapy at a cost of $2,412.14;

• a plan dated May 2, 2016, in which Ms. Bierbrier recommended that D.T. receive educational and brokerage sessions at a cost of $2,095.28.

11. Wawanesa responded to each of these in the same manner: it sent D.T. an Explanation of Benefits informing her that it required her attendance at a further insurer examination in order to determine if the services recommended were reasonable and necessary.

D.T. commences this application

12. On May 13, 2016, D.T. commenced this application.

Dr. Tansey’s examination

13. The insurer examination scheduled in response to the four Treatment and Assessment Plans mentioned in para. 10, above, occurred on June 20, 2016. Dr. Tansey, an orthopaedic surgeon, examined D.T. Dr. Tansey provided his report to Wawanesa by letter of July 8, 2016. Based on this report, Wawanesa denied the four plans.

The case conference order and first reconsideration

14. On July 12, 2016, the Tribunal held a telephone case conference in this matter to discuss, among other things, procedure. During the conference, D.T.’s representative requested, among other things, that the application be heard by way of an in-person hearing. The basis for his request was that, given D.T.’s limited facility with English, a hearing conducted by teleconference or in writing would be prejudicial. In its case conference order of July 12, 2016, the Tribunal ordered that the hearing would be conducted in both writing and via teleconference.

15. In response, D.T.’s representative requested that I reconsider the Tribunal’s case conference order. Again, he argued that D.T.’s limited fluency in English necessitated an oral hearing. In support of his request, he pointed to the fact that, during the case conference, he had difficulty communicating with his client through a translator via telephone.

16. I denied the request. In my reasons for doing so, I explained, among other things, that any of the communication difficulties that D.T.’s counsel feared could be resolved by having D.T., her counsel, and the interpreter in a single location.

The Tribunal’s decision

17. The Tribunal then heard this matter on October 19 and November 8, 2016. There were two main substantive issues in dispute: (1) whether D.T. was entitled an IRB in the amount of $70 per week from July 28, 2014 to date and ongoing, and (2) whether D.T. was entitled to any of the medical benefits that Wawanesa had denied on May 28, 2014 and thereafter. This included a claim for the $192.10 cost of a back brace, which Wawanesa received by way of Expense Claim Form or OCF-6 dated April 6, 2016. Additionally, the Tribunal was also asked to determine whether D.T. was entitled to interest on any overdue payments.

18. In reasons released on April 24, 2017, the Tribunal denied all of D.T.’s claims. With respect to D.T.’s entitlement to an IRB, the Tribunal ultimately preferred Dr. Zarnett and Dr. Westbrook’s evidence that D.T. did not suffer a substantial ability to perform the essential tasks of her pre-accident employment. As for D.T.’s claim to the disputed medical benefits, the Tribunal noted the MIG’s monetary limit of $3,500 had been exhausted and, thus, that it was driven to consider whether the MIG applies. As it explained at paras. 81-5 of its reasons:

The applicant made claims for a number of medical benefits listed as issues in paragraph 43 (ii) – (viii) above. Wawanesa denied the benefits indicating that the applicant was being treated under the MIG and had previously exhausted her maximum entitlement of $3,500.

The Case Conference Order dated July 12, 2016 does not include the issue of whether the applicant’s injuries fall within the MIG. I was also not asked to add this as an issue in dispute, although, submissions where made by the applicant that her injuries fall outside of the MIG because she suffers from pre-existing conditions that prevent her full recovery and she developed injuries from the accident that do not meet the definition of a MIG injury.

At the start of the hearing, I raised this issue with counsel. If I am not being asked to determine whether the applicant’s injuries fall outside of the MIG, then Wawanesa’s finding that the applicant’s injuries fall within the MIG stand. Accordingly, given that the applicant has exhausted the MIG limit, I have no authority to find that the disputed treatment plans and medical benefits be paid by Wawanesa even if I could find that they are reasonable and necessary. Applicant’s counsel submitted that I do not have to compartmentalize the MIG issue and I can look to each treatment plan.

This submission is problematic. Unless a finding is made that the applicant’s injuries fall outside of the MIG or that the applicant would be prevented from achieving maximal recovery if she is subject to the $3,500 limit and there is compelling medical evidence of a pre-existing condition that will prevent the applicant from achieving maximum medical recovery if subject to the MIG Limit, the amount of medical and rehabilitation benefits payable shall not exceed $3,500. As indicated previously, the MIG Limit has already been exhausted.

It is clear that, despite the applicant’s submission to the contrary, I must resolve the issue of whether the applicant’s injuries fall within the MIG as a precursor to reviewing the disputed treatment plans. I find that they do.

19. The Tribunal found that the MIG applied and, further, that D.T. did not have any pre-existing condition precluding the MIG’s application.

This request for reconsideration

20. D.T. now asks me to reconsider the Tribunal’s decision. In support of her request, she raises a number of alleged errors, discussed immediately below.

Discussion and Reasons

A. The Tribunal considered the medical evidence

21. In the first main section of her request for reconsideration, D.T. alleges that the Tribunal did not consider certain medical evidence indicating that she suffers from pre-existing medical conditions that would prevent her maximal recovery if she were subject to the MIG. Put another way, she argues that the narrow exception to the MIG created by s. 18(2) of the Schedule applies, and that the Tribunal failed to appreciate certain evidence proving this fact. To this end, she makes a number of arguments.

The Tribunal considered Dr. Mikhail and Dr. Weinberg’s evidence

22. First, she alleges that the Tribunal ignored the evidence of her family physician, Dr. Mikhail. Dr. Mikhail swore an affidavit in which he stated that D.T. suffered from pre-existing osteoporosis, osteonecrosis, and arthritis, conditions that are also documented in his clinical notes and records, which D.T. submitted along with her written submissions. D.T. asserts that this evidence “clearly” shows that the Tribunal had before it “relevant credible medical evidence that [she] suffered a pre-existing condition that was documented prior to the accident and prevented her recovery within the MIG limits.” However, she argues, the Tribunal ignored this evidence, a fact that she claims the Tribunal acknowledges at para. 111 of its reasons, which reads as follows:

Counsel for the applicant included a substantial amount of medical records some of which detailed the applicant’s medical conditions that were in no way related to the accident. In addition, when referring to medical records, the applicant would cite, for example, “Clinical notes and records of Dr. Mikhail” without referencing a specific tab or page number. The clinical notes and records of Dr. Mikhail were in excess of 140 pages. It is not for this Tribunal to try to find the “relevant” evidence in a party’s submissions but it is a party’s onus to direct the Tribunal to relevant evidence to support its case. The applicant failed to do so in this matter.

23. At no point in the above paragraph does the Tribunal suggest that it refused to review Dr. Mikhail’s clinical notes and records. To the contrary, the Tribunal’s observation that some of this evidence was “in no way related to” D.T.’s motor vehicle accident makes plain that it reviewed them. The remainder of the Tribunal’s reasons are also telling. The Tribunal repeatedly references or quotes the substance of this evidence at various turns, most notably when explaining at para. 70 the inconsistencies between Dr. Mikhail’s affidavit and his clinical notes and records: see also paras. 49, 53, 70, and 112. Any suggestion that the Tribunal ignored this evidence is, therefore, baseless.

24. The Tribunal’s comments in para. 111 make a much more important point. They voice frustration with a lack of guidance from D.T.’s counsel and, in that absence, having to locate for itself the evidence purportedly proving D.T.’s claim. Having faced the same challenge on this request for reconsideration, I agree with the Tribunal’s sentiment. Good advocacy and professional responsibility should compel counsel to summarize accurately the evidence upon which they rely, cite precisely where the Tribunal can find this evidence in their materials and, ideally, walk the Tribunal through this material during oral argument. The Tribunal emphasizes these same points immediately after para. 111 in paras. 112-3:

It is important to point out that when a party indicates that medical evidence indicates a particular conclusion or diagnosis in their submissions, this should be properly referenced so that the evidence may be easily reviewed by the Tribunal. In this case, for example, the applicant’s submissions (page 11, paragraph 11) indicated that the applicant suffered from a “right rotator cuff tear”. After searching through the plethora of medical documents, there was no evidence of a “right rotator cuff tear” but an MRI which indicated that “a partial thickness tear involving the bursal surface fibers of the right supraspinatus tendon is suspected.” A “suspected partial tear” is different from a “tear.”

The lack of citations referring to a specific document when the applicant indicates that a medical practitioner makes a specific finding is troubling. For example, at paragraph 10 of the applicant’s submissions she states the following: “On or about January 4, 2015…Dr. Weinberg physically examined…He determined that these injuries were the result of her motor vehicle accident.” Dr. Weinberg repeats this statement in his affidavit at paragraph 8 of the applicant’s document brief. The St. Joseph’s clinical notes and records [i.e., where Dr. Weinberg saw D.T.] are contained in tab 21 of the applicant’s document brief. I was not taken to these documents during the hearing. The handwritten notes contained in tab 21 are largely illegible.

25. In short, the Tribunal’s point, and one that I would reiterate, is that it is counsel’s obligation, not the Tribunal’s, to make a party’s case. Counsel should not misrepresent the evidence or rely on bald assertion. Nor should they point vaguely to a body of evidence or, likewise, expect the Tribunal to puzzle through a document dump in order to decipher and then assemble an evidentiary foundation for one’s case.

26. Notwithstanding the lack of guidance it received from D.T.’s counsel, the Tribunal reviewed the evidence. This included, as described above, reviewing Dr. Mikhail’s affidavit along with his clinical notes and records. It also included reviewing the evidence of Dr. Weinberg, upon which D.T. relied both before the Tribunal and on this request for reconsideration. Ultimately, the Tribunal disagreed with D.T.’s position that this evidence “clearly” shows that she suffered “a pre-existing condition that was documented prior to the accident and prevented her recovery within the MIG limits.” The Tribunal explained the basis for its conclusion, in relevant part (at paras. 99-101), as follows:

In her submissions, the applicant states that she suffered from pre-existing osteoporosis, osteonecrosis and arthritis that was documented in Dr. Mikhail’s and St. Joseph’s clinical notes and records.

Even if it is accepted that the applicant suffered from these pre-existing conditions, the applicant has not indicated or provided evidence as to how these conditions prevent her from reaching maximal recovery under the MIG.

The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. Other than the applicant indicating that the conditions complicate her treatment and full recovery, the applicant has not provided compelling medical evidence to show that her pre-existing conditions prevent her from achieving maximal recovery under the MIG.

27. I agree with the Tribunal’s conclusion. Pursuant to s. 18(2) of the Schedule, the MIG’s $3,500 monetary limit does not apply to an insured person if

his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline. [emphasis added]

28. Given the wording of s. 18(2), the central inquiry does not focus solely on whether the insured person has a pre-existing condition. Rather, it is on whether the insured person has a pre-existing condition that was documented by a health practitioner before the accident and, more importantly, whether his or her health practitioner provides “compelling evidence” that this pre-existing condition will prevent maximal recovery if the insured person is treated under the MIG.

29. In this case, most of D.T.’s claims rest problematically on her continued emphasis of only her pre-existing conditions. That is not enough. Again, the key question is whether there is “compelling evidence” that her restriction to the MIG will prevent her maximal recovery. In the Tribunal’s opinion, there is not. I agree.

30. Dr. Mikhail’s affidavit states only that, prior to the accident, D.T. “had osteoporosis, osteonecrosis and arthritis and these conditions persist to present day.” It does not offer any explanation, let alone “compelling evidence,” of why D.T. would be denied maximal recovery if she is subject to the MIG. Dr. Mikhail’s notes and records offer no such explanation either.

31. For his part, Dr. Weinberg swore an affidavit in which he stated that, prior to the accident, D.T. “suffered from osteoporosis, osteonecrosis and arthritis” and that “[t]hese conditions complicated her treatment at St. Joseph’s clinic and prevented her full recovery.” The Tribunal obviously did not find this compelling. Nor do I.

32. On January 4, 2014, Dr. Weinberg completed a Minor Injury Treatment Discharge Report or OCF-24 seeking, in effect, to treat D.T. outside of the MIG. Dr. Weinberg’s request made no mention of D.T.’s pre-existing conditions. Instead, it was based on D.T.’s ongoing pain and difficulties with her hand.

33. Further to the OCF-24, Dr. Weinberg prepared a Treatment and Assessment Plan or OCF-18 on February 24, 2014. In it, he diagnosed D.T. with “Whiplash associated disorder [WAD3] with complaint of neck pain with neurological signs” and “Tension-type headache.” However, as the Tribunal noted at paras. 90-3, he also indicated that, prior to the accident, D.T. did not have any disease, condition, or injury that could affect her response to treatment for the injuries he diagnosed. The OCF-18 form explicitly directed him to “please explain and provide compelling evidence why the applicant does not come within the Minor Injury Guideline due to a pre-existing medical condition.” Dr. Weinberg’s only explanation: “This is an extension of the Minor Injury Guideline.”

34. Later, in another OCF-18 dated July 9, 2014, Dr. Weinberg repeated his diagnosis of D.T. and, again, indicated that, prior to the accident, D.T. did not have any disease, condition, or injury that could affect her response to treatment for the injuries he diagnosed. In response to the form’s prompt that he “please explain and provide compelling evidence why the applicant does not come within the Minor Injury Guideline due to a pre-existing medical condition,” he simply offered “The patient is still experiencing pain and needs more treatment.”

35. All told, Dr. Weinberg’s assertion in his affidavit that D.T.’s pre-existing conditions “prevented her recovery” is not just unsupported but, in fact, contradicted by his statements or lack thereof elsewhere. Despite what his affidavit suggests, Dr. Weinberg consistently indicated that his desire to continue to treat D.T. was a result of her ongoing pain, not from any barrier to recovery posed by her pre-existing conditions. In the circumstances, I therefore find no error in the Tribunal’s conclusion that D.T. failed to marshal the “compelling evidence” required by s. 18(2) of the Schedule.

36. As part of her argument concerning Dr. Weinberg’s evidence, D.T. also takes issue with the Tribunal’s observation that some of Dr. Weinberg’s records were illegible. In her view, the Tribunal erred in not reviewing this material or advising the party of its concern.

37. Any criticism here should not be directed at the Tribunal but, again, counsel. If this material were important to D.T.’s case, it could have easily formed part of, and could have been discussed in, Dr. Weinberg’s affidavit. Alternatively, counsel could have called Dr. Weinberg as a witness to explain his handwritten notes. Instead, counsel chose to submit Dr. Weinberg’s handwritten notes – a total of five pages in an otherwise sizeable record – without offering the Tribunal further assistance. Counsel must live with its choice. At any rate, I have been offered no explanation as to how these few pages would, if properly understood, affect the Tribunal’s decision. Accordingly, I give no effect to this part of the request for reconsideration.

The Tribunal considered Dr. Zarnett’s evidence

38. Next, D.T. alleges that the Tribunal failed to consider the entirety of Dr. Zarnett’s evidence. D.T. argues that Dr. Zarnett’s insurer examination report of June 10, 2014 is important in that it suggests that she had a pre-existing torn rotator cuff and had tendonitis. D.T. argues that both of these conclusions should take her out of the MIG.

39. In his insurer examination report, Dr. Zarnett mentioned that D.T. reported to him that she had an MRI of her shoulder, and that the MRI showed “some kind of muscle tear.” Based on this information, he indeed mentioned, “[a]ssuming the MRI did show a tear of the rotator cuff, in all likelihood, this is a pre-existing condition.” However, he also wanted to review the MRI. After that review, he authored an addendum on July 24, 2014 in which he opined that D.T. did not have a torn rotator cuff but did have “some evidence of tendonitis.” The Tribunal summarized these facts at paras. 62-67. Any suggestion that Dr. Zarnett concluded that D.T. had a torn rotator cuff overlooks this summary and Dr. Zarnett’s addendum. Additionally, to the extent that there is some evidence that D.T. has tendonitis, I see no persuasive evidence in the record as to when this first presented, let alone any compelling evidence that this tendonitis prevents her maximal recovery under the MIG. For these reasons, I give no effect to D.T.’s arguments here.

The Tribunal considered Dr. Tansey’s evidence

40. D.T. also argues that the Tribunal failed to properly consider Dr. Tansey’s insurer examination report of July 8, 2016. According to D.T., Dr. Tansey’s report provides evidence that “the accident likely aggravated [her] pre-existing rotator cuff strain,” and that this strain “could be considered a pre-existing condition that prevents full recovery within the MIG along with arthritis and osteoporosis.”

41. The problem with this submission is that it cherry-picks from Dr. Tansey’s report. Dr. Tansey may have opined that the accident aggravated D.T.’s pre-existing rotator cuff strain. However, he also opined that D.T. recovered from this aggravation, that this aggravation constituted a “minor injury” as defined by the Schedule, and that there was no compelling medical evidence that D.T. had a pre-existing medical condition that would prevent her maximal recovery under the MIG. These findings are a full response to D.T.’s argument.

B. The Tribunal properly applied the MIG

42. The next major portion of D.T.’s request for reconsideration argues that the Tribunal erred in finding that she was not entitled to receive the disputed medical benefits. For the most part, D.T. attempts to advance her argument by either summarizing the evidence supporting her need for these benefits or, alternatively, highlighting the frailties of Wawanesa’s evidence suggesting otherwise. Either way, D.T.’s argument misses the larger picture.

43. In short, D.T. invites me to put aside the Tribunal’s finding that the MIG applies and, in its stead, find that these benefits are “reasonable and necessary.” Given its finding that the MIG applies, the Tribunal was not empowered to make that determination. The Tribunal explained this fully at paras. 81-5 of its reasons, reproduced above.

44. The parties agree that the MIG’s monetary limit of $3,500 has already been exhausted. Given this fact, the Tribunal was required to determine whether the MIG applied in order to, in turn, determine whether D.T. was entitled to the claimed benefits. If the MIG applied, then, pursuant to s. 18 of the Schedule, D.T. was not entitled to these benefits; if the MIG did not apply, then D.T. might be entitled to these benefits assuming they were “reasonable and necessary” within the meaning of s. 15 and 16 of the Schedule. The Tribunal found that the MIG indeed applied and, consequently, that D.T. was not entitled to any further medical benefits. D.T. has failed to prove, both before the Tribunal and on this request, that she should be treated outside of the MIG. As a result, I have no reason or authority to determine her entitlement to any benefits beyond the MIG’s monetary limit.

45. In advancing her argument, D.T. also once again impugns the Tribunal for finding that Dr. Weinberg’s handwritten notes were illegible. In her view, the Tribunal was “required to consider all evidence submitted…and if there is something preventing [it] from learning facts, [it] ought to discuss this with the parties and seek a resolution instead of ruling that [it] would not take those records into consideration because [it] cannot read them.”

46. My response is the same as above: counsel must live with its tactical choices. If this evidence were important, counsel could and should have taken steps to clarify its import. In its search for the facts, the Tribunal would certainly benefit from asking counsel to clarify illegible material. As it stands, however, counsel decided to advance D.T.’s case by including handwritten notes that were illegible, then neglecting to explain to the Tribunal what these notes communicated. The illegibility of this evidence goes to its sufficiency and weight, not to any deficiency in the Tribunal’s decision-making process.

47. Moreover, D.T. has not offered any explanation about what these few pages in fact mean or, better still, how the “evidence” they offer would have, if properly considered, affected the Tribunal’s decision. D.T. simply raises the allegation of a “legal error” without any description of this alleged error’s analytical consequence – if the Tribunal missed something, that something has never been identified. As a result, I see no reason to interfere with the Tribunal’s decision.

48. The same applies to D.T.’s argument suggesting that the Tribunal was wrong for, as she puts it, questioning Dr. Mikhail’s credibility without first giving him an opportunity to explain the inconsistencies between his affidavit and clinical notes and record. D.T. alleges that, by not giving Dr. Mikhail this opportunity, the Tribunal violated the rule in Browne v. Dunn.¹

49. The Tribunal did not find that Dr. Mikhail was not credible. It simply found the inconsistencies in his evidence “troubling:” see para. 70. Moreover, to the extent that such a finding impugns Dr. Mikhail’s credibility, the Tribunal, as the trier of fact, was required to weigh the evidence and make findings of credibility. The rule in Browne v. Dunn does not require the Tribunal to call a witness before making any finding of credibility concerning his or her evidence. As the Ontario Court of Appeal described it in its now oft-cited decision in R. v. Henderson,² the rule in Browne v. Dunn “stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.”³ In the circumstances at issue here, the rule has no application.

C. The Tribunal did not err in admitting the surveillance evidence

50. Next, D.T. submits that the Tribunal considered “improper evidence,” namely the surveillance footage report authored by Mr. Frank Tucci of Centura Investigation Agency. D.T. alleges that this evidence lacked accuracy, reliability, and probative value. For these reasons, she argues that the Tribunal erred in admitting it into evidence.

51. D.T.’s arguments in this request are different from those she raised initially with the Tribunal. Her previous objections to the surveillance footage report were limited to two points, both of which the Tribunal addressed, in paras. 35-42, as follows:

The Applicant objected to the video surveillance report being entered into evidence for two reasons: i) the applicant argues that the surveillance report does not reflect the surveillance video; and, ii) the applicant wants to cross-examine the investigator.

Wawanesa argues that prior to 1:50 p.m. on day one of the hearing the applicant did not provide notice that she wanted to cross-examine the surveillance investigator and secondly, this was the first time Wawanesa has heard that the surveillance report does not reflect what is in the surveillance video.

I will allow the surveillance report to be admitted into evidence and will determine the weight it is to be given.

The applicant’s objection to the surveillance report was raised mid-way through day two of the hearing.

The applicant indicated that they had served a summons on the investigator.

Pursuant to s. 12(3) of the SPPA, a summons shall be personally served. The applicant confirmed that the summons was served by fax. Accordingly, the summons had not been properly served.

Section 10(1)(b) of the SPPA states that a party to a proceeding may conduct cross-examinations of witnesses reasonably required for full and fair disclosure of all matters relevant to the issues in the proceeding.

The cross-examination of the investigator was not reasonably required. The surveillance video recorded the activities of the applicant and the report summarized the activities. Where the investigator provided opinions in his report on the applicant’s physical abilities, I gave these opinions no weight. Likewise, I disregarded any reported activities not viewed on the video.

52. In my view, the Tribunal dealt with these objections fairly. D.T. should not be permitted to raise new objections to this evidence that were not raised previously. In any event, I fail to see D.T.’s concern over this evidence: at no point was it even mentioned in the Tribunal’s analysis on the substantive issues determined. In the end, this ground of the request for reconsideration is, like her arguments concerning the legibility of Dr. Weinberg’s handwritten notes, one that attempts to reveal an error that, even if true, is inconsequential.

D. The applicant was not entitled to an oral hearing

53. In the next part of her request for reconsideration, D.T. argues that the Tribunal erred in refusing to order that this matter be heard by way of a full, oral hearing. In her view, the Tribunal breached the principle of procedural fairness by not ordering an in-person hearing, a decision that allegedly “severely prejudiced” her ability to present her case fully. In order to illustrate this prejudice, D.T. explains that the teleconference portion of the hearing was “very chaotic because of the number of individuals participating on several telephone lines.”

54. For the most part, D.T. reargues her request for reconsideration of the Tribunal’s case conference order of July 12, 2016, which determined the hearing’s format. I responded to that request in my reasons of September 22, 2016. I should not add to them here.

55. Nevertheless, I may properly consider whether, following those events, the hearing resulted in a breach of procedural fairness, or whether the Tribunal erred in refusing to grant D.T.’s mid-hearing request that the matter be converted into an in-person hearing. My response to both issues is the same: I see no error.

56. The parties before the Tribunal have a right to be heard. That right does not necessarily include an entitlement to an oral hearing. Under its Rules of Practice and Procedure, the Tribunal has broad discretion to decide on the format of its hearings: see Rule 12. In this case, both before and during the hearing, the Tribunal received D.T.’s request for an in-person hearing and exercised that discretion in favour of a hearing comprised of both a written and teleconference portion. D.T. obviously disagrees with that choice. However, aside from pointing to some limited confusion and technological glitches having occurred during the hearing’s teleconference, she offers no compelling detail about how, for example, the hearing’s format prevented her from presenting her case, affected her ability to participate meaningfully, resulted in the misapprehension of evidence, affected the Tribunal’s decision, or otherwise disadvantaged her in any respect. Any breach of procedural fairness, assuming one occurred, was trivial or merely technical.

E. The Tribunal did not err in refusing to permit the hearing’s recording

57. Lastly, D.T. takes issue with the fact that the Tribunal also refused her mid-hearing request that the hearing be recorded. The Tribunal recounted the request and its response at paras. 28-30 of its reasons:

Day two of the hearing was scheduled to start at 4:00 p.m. in order to accommodate the witnesses. Applicant’s counsel made a request to have the hearing recorded. I declined the request.

Rule 13.2 of the Rules states that a party who wishes to record a hearing may do so if authorized by the Tribunal. Requests for permission to make a recording must be made in writing to the Tribunal at least 14 days prior to the hearing.

I indicated that if applicant’s counsel wanted the hearing recorded, the request should have been made prior to 4:06 p.m. on the second day of the hearing. Logistically there was no way to accommodate that request. In addition, the applicant could have retained a court reporter.

58. D.T. argues that the Tribunal’s decision in this respect amounted to a denial of procedural fairness. I disagree. D.T. was not entitled to a transcript of the hearing. She may have been granted the ability to create one had she complied with the requirements of Rule 13.2, in particular by asking at least 14 days in advance of the hearing to create one. However, the request was made midway through a hearing that was already scheduled to recommence at 4 p.m. in order to accommodate the witnesses. Given the request’s timing and logistical impossibility to fulfil, along with the potential loss of time for all involved if the hearing were rescheduled, I see no error in the Tribunal’s approach.

59. I also fail to see how the Tribunal’s refusal to grant D.T.’s request implicated her procedural rights. The Tribunal’s thorough and detailed reasons in support of its decision will allow for any appeal or judicial review. Moreover, D.T. has raised no issue going to the outcome of the Tribunal’s decision that can only be determined, whether by me or a court, with the benefit of a transcript. Indeed, D.T. described her request for a transcript as being made for “accuracy purposes.” As such, her argument here is, like others, one that focuses on an alleged error with no real consequence.

Conclusion

60. For the reasons above, I therefore deny the request for reconsideration.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: August 14, 2017

Footnotes

1. 1(1893) 6 R 67 (HL(E)).
2. 2(1999) 1999 CanLII 2358 (ON CA), 134 C.C.C. (3d) 131.
3. 3Ibid. at 141.