Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Jonathan Batty, Associate Chair
File: 18-000423/AABS & 18-000426/AABS
Case Name: S.M. vs. Certas Direct Insurance Company
Written Submissions By:
For the Applicant: Dianna Morello, Legal Counsel
For the Respondent: Richard J. Campbell, Legal Counsel
Introduction
1The applicant requests reconsideration of a Motion Order dated November 27, 2018.
2Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide this reconsideration request.
3For the reasons that follow the applicant’s request for reconsideration is denied.
The Facts
4The applicant was involved in two motor vehicle accidents: the first on May 26, 2012 and the second on January 23, 2016. An application has been brought in respect of each accident, respectively applications 18-000423 and 18-000426, and the matters are proceeding together. While initially set down for hearing on October 9, 2018, an adjournment was requested by the applicant and the matter was delayed for hearing until December 3, 2018. In the lead up to the first hearing date, deadlines for productions and the exchange of submissions were established.
5An adjournment of the first hearing date was sought by the applicant in order to add three treatment plans to the issues in dispute. The motion was opposed by the respondent. The Tribunal decided not to add one of the three to the issues in dispute. The remaining two, which applicant’s counsel indicated had been inadvertently omitted, were added by the Tribunal. The case conference order of August 30, 2018 reflects that the parties had completed the productions by this time and that all that was left to exchange was their respective submissions and supporting evidence between November 5 and 26, 2018. However, that is not what happened.
6In October 2018, the applicant served the respondent with two new medical reports pertaining to non-earner benefits and income replacement benefits – in effect two new issues. The respondent took issue with the applicant’s actions and subsequently brought a motion for an adjournment of the December 3, 2018 hearing date in order to, among other things, obtain an assessment of the applicant in light of the new medical reports. The respondent moved for an adjournment on November 2, 2018.
7Also in October 2018, the respondent served on the applicant a new surveillance report. The applicant, in turn, took issue with the respondent’s actions and on November 6, 2018, the applicant brought its own motion to obtain further productions from the respondent.
8These motions were heard together by Vice Chair Hunter and he released his decision on the motions on November 27, 2018. In that decision, he:
Granted the respondent’s motion to adjourn the written hearing scheduled for December 3, 2018.
Granted the applicant’s motion, in part, to require the respondent to provide the applicant the complete and unedited video surveillance sought by applicant in connection with the October 2018 surveillance report – as well as the investigator’s written notes.
9It is important to note that the applicant fared well on these motions. Rather than granting the respondent’s request that the applicant be denied the ability to rely on the two reports served without notice on the respondent in October 2018, the applicant’s two new reports would be accepted and the applicant also obtained some sought after production.
10As the proceeding as a whole needed to be rescheduled in light of the new documents being advanced, Vice Chair Hunter ordered the following:
The parties would provide within 30 days of his decision 3 mutually agreeable dates for a new case conference.
At the case conference, the Tribunal would schedule new dates for the written hearing and the parties’ submissions. It would set a deadline for the exchange of evidence to be relied on for the hearing. The parties would also be asked to address the use of affidavit evidence and any resulting request to cross examine the affiants.
11The applicant takes issue with Vice Chair Hunter’s order and seeks reconsideration.
Decision and Reasons
12Rule 18 of the Rules of Practice and Procedure governs the reconsideration process. Rule 18.1 requires a request for reconsideration to include the reasons for the request and an explanation of how those criteria, set out in Rule 18.2, are met.
13The criteria for reconsideration under Rule 18.2 are as follows1:
(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 had the error not been made;
(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
14This 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.
15A party seeking a reconsideration has a high onus to meet to engage this remedy. Minor or inconsequential procedural or substantive mistakes do not qualify for reconsideration. It is only warranted in cases where an adjudicator has either made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
16The applicant submits reconsideration is warranted because:
a. The Tribunal’s orders in respect of productions have been procedurally unfair and erred in law.
b. The Tribunal erred in granting an adjournment in respect of the addition of treatment plans when none were in issue.
c. The decision gives rise to a reasonable apprehension of bias.
d. The delay in the proceeding has resulted in prejudice to his client.
17I will now address each of these alleged errors.
(i) Procedurally unfair orders and an error of law
18The applicant alleges that the manner in which the Tribunal has managed productions in these applications is contrary to the Tribunal’s own Rules and that Vice Chair Hunter found these rules a breach of natural justice. The order at issue, however, makes no such finding.
19The applicant asserts that Rule 9 sets out that a party need only make disclosure 10 days in advance of a hearing and that any order to the contrary is a breach of procedural fairness. Such a characterization of the Tribunal’s disclosure requirements is flawed.
20While Rule 9.2 establishes a minimum of 10 days for disclosure, it further provides that the Tribunal has discretion to order disclosure to follow a different timetable. Similarly, parties may request the Tribunal to set the timetable for such matters pursuant to Rule 9.3. Finally, Rule 9.4 provides that if a party fails to comply with the disclosure requirements ordered by the Tribunal, the party may not be allowed to rely on that document.
21I see no evidence that Vice Chair Hunter prevented the applicant from submitting any document in its possession. Rather, the applicant submits that it should have been able to submit these newly produced documents despite the previous case conference orders still in effect. It is simply incorrect for the applicant to submit the contrary was envisioned and permitted by the prior case conference order of August 30, 2018. It clearly was not.
22The applicant additionally submits that Vice Chair Hunter erred in following the Divisional Court’s decision in Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986. That decision is not distinguishable, as the applicant submits it is. It dealt with essentially the same situation and how the principle of procedural fairness applies in such circumstances. As in that matter, procedural fairness requires that a party have the opportunity to be heard and to respond to the position taken against it. I return to essentially the same point, below.
(ii) Granting an adjournment in respect of the addition of treatment plans when none were in issue
23The applicant submits that the adjournment requested by the respondent before Vice Chair Hunter was founded on grounds that the applicant was allegedly seeking to add new treatment plans at this juncture in the proceeding. I do not think that is a correct characterization of what was moved by the respondent or decided by the Tribunal.
24Vice Chair Hunter read the reports at issue as is clear from his decision. He was not hearing the two applications on their merits. At this stage of the proceedings his role was to see that the matters were on an appropriate track for hearing. He noted the two reports at issue referenced the legal test for non-earner benefits and income replacement benefits. These were new issues. This is no longer a proceeding in relation to contesting treatment plan benefits. Consequently, his order was crafted to have the matter proceed appropriately.
25If any party wishes to have new issues and evidence added before hearing, the other party needs to be given a chance to test that evidence and respond accordingly. It affords the other party the chance to challenge the issue – or cede the issue – before hearing. This provides procedural fairness and just outcomes. Vice Chair Hunter’s decision and order reflects that he took these very things into account.
(iii) The decision gives rise to a reasonable apprehension of bias
26It is a very serious allegation that a Tribunal’s decision gives rise to a reasonable apprehension of bias.
27The test for reasonable apprehension is well-established. It is as follows:
The test for whether a reasonable apprehension of bias exists is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.
28The applicant makes no reference to this legal test and makes no submissions as to how it applies in this particular context. Instead, there are statements made that the applicant has been treated unfairly throughout the course of the proceedings and a general assertion that the Tribunal favours insurers over individual applicants.
29The proceeding to date has been even-handed and afforded the applicant the ability to revise the issues at the applicant’s request. In the motion at issue in this reconsideration, the applicant fared well.
30The applicant has wholly failed to establish any reasonable apprehension of bias in the Tribunal’s handling of these applications.
(iv) The delay in the proceeding has resulted in prejudice to his client
31The applicant submits that the delay in the proceeding has resulted in prejudice to his client.
32Having reviewed the record before me, I think it is difficult for the applicant to make this assertion. The first adjournment I see was requested by the applicant because counsel requested new issues be added because of an error made on the part of the applicant. The latter adjournments request arise from the fact that the applicant sought to add new issues to the proceeding and also obtain further productions from the respondent in light of a new report received from the respondent.
33I fail to see any prejudice to the applicant when a large part of the delay is directly attributable to the applicant. As noted above, if a party wishes to have new issues and evidence added before hearing, the responding party needs to be given a chance to test that evidence and respond accordingly. At this juncture, the applicant cannot expect to add these sorts of issues and evidence to a proceeding without the schedule being revised.
CONCLUSION
34For the reasons noted above, this request for reconsideration is denied and the parties are directed to comply with Vice Chair Hunter’s order released on November 27, 2018.
35Specifically, the parties shall provide within 30 days of this decision 3 mutually agreeable dates for a resumption of the case conference. The case conference will schedule new dates for the written hearing and the parties submissions. It will set a deadline for the exchange of any outstanding evidence to be relied on for the hearing. The parties will also address the use of affidavit evidence and any resulting request to cross examine the affiants.
Jonathan Batty Associate Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: April 18, 2019
Footnotes
- I note that Rule 18 has recently been revised and, effective February 7, 2019, reconsiderations of interlocutory rulings are no longer permitted and other revisions were made as well. As the applicant’s reconsideration was filed prior to that date, the request for reconsideration was accepted and considered under the criteria in effect prior to February 7, 2019.