RECONSIDERATION DECISION
Before: D. Stephen Jovanovic, Associate Chair
File: 17-008078/AABS
Case Name: M.G. v. Intact Insurance Company
Written Submissions by:
For the Applicant: Samia M. Alam, Counsel
For the Respondent: A. Sandy Williams, Counsel
OVERVIEW
1The applicant was involved in a motor vehicle accident on March 29, 2016 and subsequently filed an application with the Tribunal to determine certain issues, all of which were resolved except one. That remaining issue was whether the applicant was entitled to payment for the cost of an economic loss report prepared by Great Oak IRB Calculations in the amount of $2,825.01 which was denied by the respondent on February 17, 2017.
2The respondent has taken the position that the expense incurred by the applicant in obtaining the report was not "reasonable and necessary for the purpose of determining the insured person's entitlement to an income replacement benefit". The respondent submits that the applicant should have obtained an OCF-2 instead from his employer who happens to be the law firm that represents him before the Tribunal in the current matter.
3On January 25, 2019, a case conference was conducted to determine whether the issue of payment by the respondent for the Great Oak report should be decided by way of a written or in-person hearing. The respondent argued for a hybrid hearing as it wished to cross-examine the applicant's employer who happened to be his lawyer.
4The adjudicator conducting the case conference ordered that the matter proceed by way of a written hearing in an oral decision given at the case conference with reasons subsequently delivered on February 22, 2019.
5The respondent, by way of written submissions dated January 29, 2019, requested a reconsideration of that order submitting that the adjudicator violated the rules of procedural fairness.
6I have been delegated the authority to decide this reconsideration request by the Executive Chair pursuant to s. 17(2) of the Adjudicative Tribunals Accountability Governance and Appointments Act, 2009, S.O. 2009, c.33, Sched. 5.
7For the reasons that follow, I confirm the Tribunal's order of January 25, 2019 with reasons dated February 22, 2019.
ANALYSIS
8The respondent cites the Supreme Court of Canada decision in Baker v. Canada, 1999 SCC 699 where the court set out the following five factors to be considered when deciding the degree of procedural fairness owing to a party:
- The nature of the decision;
- The nature of the statutory scheme;
- The importance of the decision to the affected person
- The presence of any legitimate expectations; and
- The choice of procedure made by the decision maker.
9The respondent also relies on the decisions in Khan v. University of Ottawa, 1997 CanLII 941 (Ont. C.A.) and Behnke v. Canada (Department of External Affairs), 2000 CanLII 15883 (F.C.) both of which I have considered. In my view, there is nothing in these decisions that supports the granting of the request for reconsideration. I am not satisfied that applying the principles from all of the cases cited by the respondent leads to the conclusion that the adjudicator denied the respondent procedural fairness.
10The respondent submits that an oral hearing was necessary because the "credibility of the Claimant's employer [lawyer] is critical in determining the rationale for the decision to submit an accounting report rather than an OCF-2." The adjudicator wrote the following:
Cross examination of a representative of the employer with respect to their "standard" practice relating to the preparation of OCF-2 reports will not provide evidence with respect to the reasonable and necessary test of this particular OCF-2. I further find that if there is any probative value to such cross examination it would not outweigh the prejudice to the applicant in proceeding with a hybrid hearing.
11The adjudicator also took into account the Tribunal's rule 3.1 which provides that the rules are to be interpreted to:
(a) Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative;
(b) Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal;
12The challenged decision of the adjudicator took into account the rationale proposed by the respondent in requesting the cross-examination of the applicant's employer/lawyer and the Tribunal's rules promoting the "efficient, proportional, and timely resolution" of disputes before the Tribunal. In my view, the adjudicator did not violate the rules of procedural fairness but, instead, applied them appropriately, in arriving at her decision. The decision places no impediment to the respondent being able to fully and fairly presenting its case.
CONCLUSION
13Pursuant to the Tribunal's rule 18.4(b) the decision and order of the Tribunal dated February 22, 2019 is confirmed.
D. Stephen Jovanovic Associate Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 15, 2019