E.C. v. Aviva Insurance Company of Canada, 2018 CanLII 141019

Safety, Licensing Appeals and Standards Tribunals Ontario Automobile Accident Benefits Service Licence Appeal Tribunal Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 Tel.: 416-327-6500 1-844-242-0608 TTY: 416-916-0162 1-844-650-2819 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto-tsapno.gov.on.ca

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Service d'aide relative aux indemnités d'accident automobile Tribunal d'appel en matière de permis Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Tél.: 416-327-6500 Sans frais Tél: 1-844-242-0608 TTY: 416-916-0162 1-844-650-2819 Téléc: 416-325-1060 Sans frais Téléc: 1-844-618-2566 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Jeffrey Shapiro, Vice-Chair

Date: November 8, 2018

File: 18-003072/AABS

Case Name: E.C. v. Aviva Insurance Company of Canada

Written Submissions By:

For the Applicant: Tullio A. D’Angela

For the Respondent: Thomas R. Hughes

OVERVIEW

1. Aviva seeks reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) August 22, 2018 Order, issued by Adjudicator Aggrey Msosa, in relation to a July 30, 2018 case conference. Aviva takes issue with Adjudicator Msosa’s ruling denying Aviva’s request to order production of several photographs. This matter is set for hearing in early December. As explained below, I deny this request for reconsideration.¹

FACTS

2. The applicant, E.C., alleges that she slipped and fell after closing the trunk of her motor vehicle in a parking lot, sustaining injuries. She then applied to Aviva for benefits under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the “Schedule”). Aviva initially accepted the claim, but then after an investigation, denied further benefits on the basis that the incident does not constitute an “accident” within the meaning of the Schedule.

3. E.C. submitted an application to the Tribunal for a decision on the dispute. Shortly after, E.C. attended Aviva’s Examination Under Oath of her.

4. On July 30, 2018, the Tribunal held a case conference. During the discussion, E.C. advised that 6 days after the incident, she took photographs of the scene, including her coffee cup that she dropped. Aviva requested copies of the photographs. After summarizing the parties’ submissions, the adjudicator denied the request stating:

“Based on the [oral] submissions, my reasons and orders are as follows: I find that the photos are of little value in determining whether [E.C.’s] slip and fall was a result of a car accident or not. However, if [E.C.] intends to use the photographs as part of her evidence at the hearing, then the photographs must be produced to [Aviva] by October 1, 2018.”

5. Under Rule 18 of the Tribunal’s Rules of Practice and Procedure, E.C. requests that I overturn the Tribunal’s decision, on the grounds that the Tribunal made a significant error of law and violated the rules of natural justice “by refusing to order production of a clearly relevant document.”

DECISION AND REASONS

6. Rule 18.1 requires a request for reconsideration to include the reasons for the request, specifying the applicable criteria under Rule 18.2. Under Rule 18.2, one or more of the following four grounds needs to be established:

1. the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

2. the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

3. 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,

4. there is new evidence that could not have reasonably been obtained earlier and would have affected the result.

7. In 17-002160 v RBC Gen. Ins. Co., 2018 CanLII 83519 (ON LAT), Associate Chair J. Batty explained that the rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. In respect of interlocutory decisions or orders, it gives the Tribunal the necessary tools to get a proceeding back on track for a just and timely resolution. Still, reconsideration is only warranted in cases where an adjudicator has made a significant legal mistake or [violated the rules of natural justice or procedural fairness…] preventing a just outcome.

8. To meet the high onus required to obtain reconsideration of a decision, a requester must provide some evidence and argument to the Tribunal.

9. Aviva argues that the Tribunal erred “by refusing to order production of a relevant document,” (emphasis added), and that the adjudicator wrongly substituted his weighing of the evidence as a production matter, for that of the hearing adjudicator on the merits. While I agree that an adjudicator at a pre-hearing preceding must be careful not to usurp the role of the hearing adjudicator in actually weighing the evidence, I do not see that is what occurred in this instance.

10. Most importantly, Aviva has not asserted in what way it alleges that the document is in fact relevant or material in this matter. Aviva does not propose how the photographs could tend to prove or disprove that the incident is or is not an accident within the meaning of the Schedule in the facts presented in this matter, let alone how its lack of disclosure would materially affect the outcome. I find the absence of the factual argument to be particularly important as Aviva denied the claim without the benefit of the photograph, and now has the benefit of an EUO, yet still does not propose the actual relevance or what the photo could prove, other to simply say that it is relevant.

11. Additionally, the adjudicator heard the parties’ arguments as well as more extensive background and is best situated to determine if the photos should be disclosed.

12. Finally, I note that Aviva’s reliance on R. V. Luciano, 2011 ONCA 89 is of limited value for several reasons. Luciano actually found that the trial judge was best situated to exclude evidence deemed relevant, but prejudicial, and the exclusion did not change the outcome. Luciano’s discussion of relevance was in a criminal case, which is different than in a Tribunal setting, where policy factors may be at issue. For instance, the Tribunal’s Rule 3.1 specifically requires “efficient, proportional, and timely, resolution”, which contemplates that disclosure in the Tribunal may not be as absolute as compared to a criminal case. Moreover, Luciano explains that relevant evidence must also be material to the dispute in the matter, and again, Aviva has not shown why the photographs are relevant and material.

13. Aviva has failed to make a prima facie case that the Tribunal’s Order includes any sort of error that merits reconsideration.

CONCLUSION

14. This request for reconsideration is denied. The Tribunal’s order remains in effect.

Jeffrey A. Shapiro

Vice-Chair, Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: November 8, 2018

Footnotes

1. 1Pursuant 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.