RECONSIDERATION DECISION
Before: Dawn J. Kershaw, Vice-Chair
File: 18-001727/AABS
Case Name: F.C. v. Unifund Assurance Company
Written Submissions By:
For the Applicant: J. John Vettese
For the Respondent: Sarah Deol
OVERVIEW
1The applicant’s request for reconsideration arises from an August 14, 2018 order of the Tribunal issued after a case conference.
2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
3As explained below, I deny the applicant’s request for reconsideration.
THE FACTS
4The Tribunal ordered a four day in-person hearing that will include oral evidence from the applicant and her medical experts.
5The Tribunal further ordered that the respondent disclose to the applicant any surveillance by the same date by which the applicant was ordered to disclose her documents for use at the hearing.
6The Tribunal also ordered that each party was limited to calling four witnesses.
7The applicant asks that the Tribunal reconsider its order because it is a denial of natural justice and procedural fairness for three reasons:
(i) The hearing format is not required nor proportional to the issues in dispute - specifically, it is cost-prohibitive for the applicant when the amount in dispute is approximately $10,000;
(ii) The surveillance disclosure date does not permit the applicant an opportunity to have her experts review and comment on it; and
(iii) The applicant is disadvantaged by a four witness limit because she intends to call her son as a witness because her first language is not English, which thereby limits her to calling only two expert witnesses.
8The applicant submits the order for a four day in-person hearing was made in spite of her protests.
THE LAW
9There are limited grounds upon which a person can request a reconsideration. In this case, the applicant asserts that the Tribunal violated the rules of natural justice or procedural fairness, and she therefore is entitled to a reconsideration pursuant to section 18.2(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
10The applicant also referred to section 2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), that states that the SPPA and any rule made by a tribunal under subsection 17.1 (4) (costs) or section 25.1 (rules that the Tribunal makes), shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
DECISION AND REASONS
Format of the Hearing
11Under the Rules, the Tribunal has broad discretion to decide on the format of its hearings: see Rule 12.
12The applicant suggests that she be permitted to submit her and her son’s evidence by affidavit upon which they could be cross-examined by the respondent, and that the medical experts be permitted to file their reports in writing.
13The respondent provided several reasons why the hearing should be in-person. It also submits the applicant has not provided any evidence that the format of the hearing is cost-prohibitive.
14In order for the Tribunal to grant the reconsideration, the applicant must show that the order for a four day in-person hearing was a breach of procedural fairness or a denial of natural justice.
15I find that the applicant has not satisfied this test. Section 2 of the SPPA does not apply to the applicant’s request for reconsideration. The section obligates the Tribunal to ensure that its rules comply with that section, including a consideration of cost-effectiveness. It does not specifically require the Tribunal to choose one method of hearing over another. As indicated, the test is whether the Tribunal’s order violated the rules of natural justice or procedural fairness.
16Some of both the applicant’s and respondent’s arguments for and against an in-person hearing have merit. However, this is a reconsideration, not an opportunity to re-argue whether or not an in-person hearing should take place. As indicated, the Tribunal has broad discretion to decide on the format of its hearings.
17I find no support for the applicant’s argument that the order for an in-person hearing violates the rules of natural justice. She provided a bald statement that the cost would exceed the value of the claim, but provided no evidence.
18I also find no denial of procedural fairness. The applicant disagrees with the decision, but provided no support for her claim that her procedural fairness was denied.
Number of Witnesses
19The applicant argues that the order limiting both parties to four witnesses is a denial of natural justice and procedural fairness because by having her and her son as witnesses, she can then call only two expert witnesses.
20The applicant did not provide any information about other expert witnesses she may want to call as witnesses in addition to the two she states she is permitted to call. She also did not provide any evidence that if she is permitted to call only two expert witnesses, she will be denied natural justice or procedural fairness.
21I find no denial of either natural justice or procedural fairness.
Surveillance Disclosure
22The respondent advised that it has no surveillance evidence to disclose. As such, there is no reason for me to address this issue.
ORDER
23The applicant’s request for reconsideration is denied and the hearing dates of November 5 to 8, 2018, in Toronto, have been vacated. A case conference resumption shall be scheduled to set new hearing dates and dates for outstanding productions and submissions, if any.
Dawn J. Kershaw
Vice-Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: November 2, 2018