RECONSIDERATION DECISION
Before: Dawn J. Kershaw, Vice-Chair
File: 17-002535/AABS
Case Name: T.T. v. Aviva Insurance Company
Written Submissions By: For the Applicant: Shivani Mehta, Counsel For the Respondent: Jessie V. Tran, Counsel
INTRODUCTION
1The respondent’s request for reconsideration, filed on February 15, 2018, arises from a costs award in the Tribunal’s January 26, 2018 decision, ordering the respondent to pay the applicant $300. The Tribunal made its costs award as part of a decision resulting from a written hearing. Just prior to the administrative date set for the hearing, the applicant brought a motion to exclude surveillance that was disclosed to him on October 6, 2017 as part of the respondent’s submissions and evidence, arguing in part that it should have been disclosed before October 6, 2017.
2The Tribunal ordered that the surveillance evidence be excluded and that the respondent pay the applicant $300 in costs, asserting that the respondent did not comply with a Tribunal order respecting production of documents.
3The respondent appealed the Tribunal’s decision, and asked that the Tribunal:
(a) find that the applicant is not entitled to costs; or
(b) order a re-hearing of the costs issue by a different adjudicator.
4Both the respondent and the applicant filed submissions.
5Pursuant 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.
6As explained below, I grant the respondent’s request for reconsideration and reverse the costs award.
THE LAW
7There are limited grounds upon which a person can request a reconsideration. In this case, the applicant asserts that the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness and made a significant error of law and of fact such that the Tribunal would likely have reached a different decision had the error(s) not been made. The respondent asserts that it 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”).
DISCUSSION AND REASONS
8I am satisfied in this case that the Tribunal made a significant error of law and facts, and that the Tribunal likely would have reached a different decision if it had not made the error of facts.
Errors of Facts and Law
9In this case, the respondent submitted that the Tribunal made an error of fact. I agree and find that if the Tribunal had considered the correct facts, set out below, that she likely would have reached a different decision.
10The errors of fact are the following. First, prior to the hearing, the Tribunal held only one case conference, not, as stated, “several case conferences” or “a number of case conferences” to address issues including the disclosure of documents. The sole case conference on July 11, 2017 resulted in a July 31, 2017 order in which there was a list of documents that the Tribunal stated it was the “present intention of the parties to rely on […]”.
11It also ordered the respondent to produce certain documents, including adjuster log notes, though no deadline for doing so was included. The order further stated that the parties would provide their “submissions and evidence” by: September 11 for the applicant; by September 25, for the respondent; and by October 3 for the applicant’s reply. Two paragraphs later, the order stated: “No additional documents or records may be filed in the appeal without the permission of the Tribunal”.
12A further order was made on September 18, 2017. In the decision that is the subject of this reconsideration request, the Tribunal said this was because the respondent had not delivered the adjuster log notes to the applicant as ordered in the July 31, 2017 order. This was incorrect. The only deadline for disclosure of documents in the July 31, 2017 order was that the applicant was to disclose his OHIP summary by August 31, 2017. The only other deadlines were those for the parties’ submissions and evidence. The deadline for the respondent’s submissions and evidence had not passed. The September 18, 2017 order in fact resulted from a motion in respect of an unrelated matter. The parties agreed at the motion that the respondent would disclose the adjuster’s log notes by September 18, 2017, which it did. The deadline for the parties’ submissions and evidence were amended to September 22, October 6 and 12, 2017, respectively.
13The surveillance evidence subsequently became the subject of an applicant’s motion because the respondent served it as part of its October 6, 2017 submissions and evidence, and had not disclosed it prior to that date. The respondent submitted that it complied with the Rules by serving the surveillance on October 6, 2017 as ordered. The applicant did not provide any arguments with respect to this issue.
14In light of the absence of a disclosure deadline in the July 31, 2017 order, I find that the respondent arguably was not in breach of it by delivering it as part of its submissions on October 6, 2017. In addition, the Tribunal relied on a misstatement of the facts when it referred to the respondent’s failure to disclose the adjuster log notes. The respondent was not in fact in contravention of any order in that respect.
15As a result, I find if the Tribunal had correctly characterized the facts, its decision with respect to costs may well have been different. Rule 18.4 of the Rules provides:
Upon reconsidering a decision of the Tribunal, the Executive Chair or his or her delegate may:
(a) Dismiss the request; or
(b) After providing all parties an opportunity to make submissions,
(i) Confirm, vary or cancel the decision or order; or
(ii) Order a rehearing on all or part of the matter.
16In this case, the Tribunal took the step of excluding the evidence, which I find in light of the facts in this case, was a sufficient remedy. Rule 9.4 states that if a party does not comply with an order for disclosure, it cannot rely on the document as evidence without the consent of the Tribunal. The Tribunal exercised the jurisdiction available to it and excluded the respondent’s evidence. It is worth noting however that the disclosure of the surveillance on October 6, 2017 was not a second failure to comply with a disclosure order as it was characterized by the Tribunal. In addition, even the failure to disclose the surveillance in advance of October 6, 2017 arguably was not in contravention of the July 31, 2017 order. In the circumstances, the exclusion of the evidence was a sufficient remedy.
17The respondent further argues that the Tribunal also made an error of law. I agree because it applied the incorrect version of the Rules to the costs issue. The Tribunal’s limited jurisdiction to award costs derives from the Rules. While the basic criteria for awarding costs remained the same in the 2016 and 2017 version of the Rules1, namely whether a party acted “unreasonably, frivolously, vexatiously, or in bad faith”, the Tribunal in this case concluded that the respondent had “disobeyed” a Tribunal order. In considering whether to award costs, the Tribunal also considered the factors added in the 2017 Rules, namely:
(i) the seriousness of the misconduct;
(ii) whether the conduct was in breach of a direction or order issued by the Tribunal,
(iii) whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process;
(iv) prejudice to other parties;
(v) and the potential impact an order for costs would have on individuals accessing the Tribunal system.
18Given that the Tribunal’s authority to award costs derives from the Rules and the Tribunal in this case applied the wrong Rules, the respondent’s reconsideration request succeeds on this ground as well.
19The respondent’s request for reconsideration is granted, and the $300 costs award is reversed.
ORDER
20The respondent’s request for reconsideration is granted.
Dawn J. Kershaw Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 10, 2019