Tribunal File Number: 17-007300/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
C.G.
Applicant
and
The Guarantee Company of North America
Respondent
INTERIM DECISION AND ORDER
Order made by: Sandeep Johal, Adjudicator
APPEARANCES:
Counsel for the Applicant: Samia M. Alam
Counsel for the Respondent: Kerry L. Figliomeni
HEARD: In-writing February 11, 2019
OVERVIEW
1The applicant was injured in an automobile accident on February 20, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The in-person hearing was scheduled for 3 days on June 11, 12 and 13, 2018 in Hamilton, Ontario. Approximately half way through day 2 of the hearing on June 12, 2018 the applicant became ill during the lunch break and had to be taken to the hospital by an ambulance.
3The cross-examination of the applicant was not completed and the cross-examination of the applicant’s husband still needs to be conducted once the hearing resumes.
4A case conference was held on December 5, 2018 to canvass dates to resume the in-person hearing. At the case conference the applicant stated that she is unable to resume her cross-examination due to medical reasons. The respondent raised the issue of completing the cross-examination and this hearing was scheduled to be heard by way of written submissions.
ISSUE IN DISPUTE
5Should the applicant be made available to continue and complete her cross-examination?
RESULT
6The applicant shall make herself available to complete her cross-examination by way of teleconference for 2 hours and the applicant shall be allowed to take two, 10 minute breaks every hour and as the hearing adjudicator considers appropriate. The cross-examination questions by the respondent shall be limited to the circumstances that relate to after the motor vehicle accident only.
RESONS FOR DECISION AND ORDER
7The applicant commenced a Tribunal application for a Minor Injury Guideline determination, entitlement to a non-earner benefit and the payment of two treatment and assessment plans plus interest.
8The applicant submits that she suffered an anxiety attack due to the prolonged and intense questioning during cross-examination and that she is unable to tolerate any further cross-examination questions.
9The applicant further submits that her affidavit should be accepted as true without the need for further cross-examination and relies on section 25.0.1 of the Statutory Powers Procedure Act (“SPPA”) whereby the Tribunal has the power to determine its own procedures and practices as well at Rule 3.1 of the LAT Common Rules of Practice and Procedure (“LAT Rules”) to liberally interpret and waive any rule as well as court case law1 and Rule 53.02(1) of the Rules of Civil Procedure.
10The respondent submits that the applicant agreed to the format of the hearing during the original case conference when this hearing was scheduled whereby written submissions and evidence would be filed and in-person cross-examinations would be conducted on the affidavits.
11The respondent further relies on s. 10.1(b) of the SPPA which permits a party to cross-examine a witness for a “Full and fair disclosure of all matters relevant to the issues in the proceeding.”
12In my opinion, if I were to accept the applicant’s submissions and admit the affidavit as true without the respondent being provided an opportunity to test the affidavit evidence, that would not be fair to the respondent because the respondent would not get a fair hearing as a result of being unable to present or defend its case, so its right to be heard may be violated. If the respondent is not allowed to complete its cross-examination the respondent submits the affidavit should be given little to no weight and that in turn would not be fair to the applicant.
13Even though the applicant relies upon case law and Rule 53.02(1) of the Rules of Civil Procedure where the court has discretion to grant leave to allow the evidence of any witness or proof of a particular fact to be given by way of an affidavit, unless the adverse party reasonable requires the attendance of the deponent for cross-examination. However the Rules of Civil Procedure do not apply in a Tribunal setting and the Tribunal is not bound by them.
14The LAT Rules allow me to control the process to make sure it is fair and efficient and generally under the umbrella of basic administrative law principles of the right to be heard and the right to a fair hearing. In applying the LAT Rules and the basic principles regarding fairness, I have considered the applicant’s medical circumstances and find that the in-person cross-examination would need to be modified and limits need to be put in place in order to satisfy the concerns raised from the applicant’s medical practitioners.
APPLICANT’S MEDICAL CONDITION
15The applicant attended at the Emergency Room at St. Joseph’s Hospital and the Emergency Room doctor in a note dated June 12, 2018 stated that the applicant “…instructed that she would need to attend for an additional 6 hours” and “This precipitated an (anxiety) attack.”2 The doctor’s impression was that this was a situational crisis and for her to follow up with her family doctor.
16On June 20, 2018 the applicant’s family doctor, Dr. H notes the applicant suffered a significant anxiety attack due to prolonged and intense questioning regarding her medical condition and he recommends that she should not be exposed to a similar situation in the future
17On August 30, 2018 Dr. V.R. from the Acquired Brain Injury Clinic notes that the applicant “would have difficulty tolerating examination for discovery or court appearance at present, but we might hope that improvement in her mood and anxiety symptoms would allow this at some point in the future.”3
18After reviewing the medical information I find that the applicant suffered an anxiety attack as a result of a “prolonged and intense questioning” and as a result of the thought of having “…to attend for an additional 6 hours.” However I do not read the notes to say that the applicant is unable to be cross-examined under any circumstance and taking into account the basic principles of fairness I find it would be appropriate to put limits on the cross-examination going forward. I now turn to what would be the best way to proceed from this unique situation and as I do so I bear in mind Rule 3.1 of the LAT Rules and the principles of fairness.
The applicant shall make herself available to complete her cross-examination by way of teleconference for 2 hours.
19In order to facilitate a fair and accessible process to allow effective participation by all parties it is my finding that the respondent be allowed to complete its cross-examination questions of the applicant but with limits and conditions that would satisfy the medical risk.
20After reviewing the medical information and being guided by the principle of fairness it is clear that a prolonged and intense cross-examination for 6 hours as noted in the medical evidence to have caused the applicant’s anxiety attack, cannot continue and will likely result in a non-productive hearing and inadequate participation. The respondent submits that 2 hours of cross-examination are all that is needed and the cross-examination shall be limited to the circumstances that relate to after the motor vehicle accident only. I find this proposal to be reasonable and fair. To address the applicant’s medical practitioners’ concerns about prolonged and intense questioning, I will allow the applicant to testify via teleconference so she can choose a safe environment where she can be comfortable, such as her home, and can make arrangements for medical or other support.
21Furthermore, in order to ensure the applicant does not suffer from prolonged and intense questioning during her cross-examination she shall be allowed to take two 10 minutes breaks every hour and as the hearing adjudicator considers appropriate.
ORDER
22The applicant shall make herself available to complete her cross-examination by the respondent by way of teleconference for a period of 2 hours and the applicant shall be allowed to take two, 10 minute breaks every hour and as the hearing adjudicator considers appropriate. The cross-examination questions by the respondent shall be limited to the circumstances that relate to after the motor vehicle accident only.
23The parties shall contact the Tribunal and provide three mutually convenient dates from which the Tribunal shall pick one for the teleconference cross-examination.
24Unless explicitly stated in this order, all other orders and decisions with respect to the matter remain in full force and effect.
Date of Issue: May 1, 2019
Sandeep Johal
Adjudicator
Footnotes
- Johnson Estate v. Nagy [2006] O.J. No. 5451 (S.C.J.) and Ismail v. Fleming 2018 ONSC 6615 (S.C.J.)
- St. Joseph’s Healthcare, Hamilton note by Dr. J.S. dated June 12, 2018.
- Dr. V.R. note dated August 30, 2018