AMENDED RECONSIDERATION DECISION
Before: Maureen Helt, Vice-Chair
File: 17-008818/AABS
Case Name: S.M. v. Aviva General Insurance Company
Written Submissions By:
For the Applicant: Rachelle Mitri, Counsel
For the Respondent: Suhasha Hewagama, Counsel
OVERVIEW
1This is a request for reconsideration made by the respondent of a Motion Order of the Tribunal dated October 24, 2018.
2In this request for reconsideration, the respondent alleges that the Tribunal violated the rules of natural justice and procedural fairness and made significant errors of law and fact such that the Tribunal would have reached a different decision.
3Pursuant 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 the responsibility to decide this reconsideration request.
RESULT
4For the reasons that follow, I dismiss the respondent’s request for reconsideration.
BACKGROUND
5An application was filed with the Tribunal on December 14, 2017. The issues in dispute are three treatment plans for chiropractic services, interest and an award. A case conference was held on April 16, 2018 at which time the parties agreed to dates for filing of submissions and the hearing date.
6As noted in the respondent’s submissions, the parties also agreed that “the evidence will be limited to documents previously exchanged between the parties by June 15, 2018.”
7On August 7, 2018, the applicant filed a motion requesting an opportunity to file an affidavit.
8A motion hearing was held on August 15, 2018.
MOTION DECISION
9The Tribunal issued an Order on the Motion permitting the applicant to file an affidavit however he limited the affidavit to the orthopaedic assessment conducted by Dr. Safir which was to be filed by October 30, 2018. The respondent was given until November 6, 2018 to file a two page responding submission to the affidavit.
10In making its decision the Tribunal noted that the respondent on the one hand indicated the need for the applicant to file an affidavit outlining her experience at the assessment but during the motion hearing the respondent argued strongly that to bring the request so late in the process is prejudicial.
ANALYSIS
11The grounds that must be established in order for a request for reconsideration to be successful are set out in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission’s Common Rules of Practice and Procedure (the Rules). The respondent sets out the following three grounds for its request for reconsideration:
a. the Vice-Chair made a significant error of fact in stating that the applicant’s failure to file an affidavit was a prominent point in the respondent’s submissions;
b. the Vice-Chair made a significant error of law in applying the findings of the Executive Chair in J.R. v. Certas Home and Insurance Company (Certas)1 to the present case; and
c. the Vice-Chair violated the rules of natural justice and procedural fairness by denying the respondent an opportunity to cross-examine the applicant on her affidavit and not allowing Dr. Safir to respond to the allegations set out against him in the affidavit.
12For reasons that follow, I find that the Tribunal did not make a significant error of fact or law such that the Tribunal would likely have reached a different decision. I also find that there was no breach of natural justice or procedural fairness.
a. Significant Error of Fact
13The respondent alleges that the Tribunal made a significant error of fact in stating that the applicant’s failure to file an affidavit was a prominent point in the respondent’s submissions. The respondent states that it addressed the applicant’s concerns regarding Dr. Safir’s assessment in two short paragraphs in its submissions.
14In reviewing the Tribunal’s decision it is clear that the prominent point he was referring to was the substantive finding that the respondent indicated at paragraph 29 of its submissions, the need for an affidavit of the applicant. I see no error in fact. The Tribunal’s statement about a “prominent point” was not with respect to the number of paragraphs but to the substantive point raised in the respondent’s submissions.
15The respondent further states that it is appropriate for it to respond to the applicant’s submissions and that it is prejudicial to the respondent for the Tribunal to allow the applicant to rectify her failure to produce the necessary evidence in time. I disagree. I find that any prejudice resulting to the respondent is remedied with the opportunity to respond to the affidavit.
b. Significant Error of Law in Application of Certas
16In referring to the Tribunal’s decision in Certas, the Tribunal concluded that “the Tribunal must be flexible in allowing necessary evidence to be adduced by the parties.” The respondent submits that this case is distinguishable from the current case, submitting that the applicant’s request to submit an affidavit was tactical.
17The respondent argues that Certas is distinguishable from the facts in this case in that, in Certas, the Executive Chair focused on the Tribunal’s failure to request complete versions of the OCF-18s in dispute. In contrast, the respondent argues that this was a request by the applicant’s counsel to submit an affidavit.
18The respondent goes on to submit that the Certas case also stands for the proposition that the applicant has an obligation to make their own case and the Tribunal will not satisfy their evidentiary onus.
19I do not disagree with the respondent’s submissions with respect to what Certas states; however, I do not agree that the Tribunal’s finding that the “Tribunal must be flexible in allowing necessary evidence to be adduced by the parties” is in any way an incorrect application of Certas.
20The key point being that if it is necessary to adjudicate the issues in dispute, the Tribunal may be flexible in determining if additional evidence may be introduced.
21While the parties are expected to adhere to case conference orders with respect to all procedural matters, including the date for serving evidence, there are instances where additional evidence may be allowed to be filed if it is in the interest of ensuring there is a complete record before the hearing adjudicator.
22It is always a balancing of rights and in this instance the Tribunal allowed the additional affidavit evidence but limited it in scope, and provided an opportunity for the respondent to file a response thereby minimizing any prejudice to the respondent.
c. Breach of Procedural Fairness and Natural Justice
23The respondent also submits that the failure to provide the respondent with an opportunity to cross-examine the applicant on her affidavit violated the rules of natural justice and fairness. The respondent relies on section 10.1(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 to support its right to cross-examination.
24Similar arguments are raised by the respondent with respect to the failure to allow Dr. Safir an opportunity to respond to the allegations made by the applicant in her affidavit.
25In response, the applicant submits that the evidence presented in the affidavit in question was initially put to the respondent by way of letter dated November 24, 2016. The applicant argues that it has been before the respondent for a significant period of time and as such there is no breach of procedural fairness in admitting this evidence in affidavit form.
26Furthermore, the Tribunal acknowledged that “applicant’s counsel was remiss in not moving earlier to obtain an order to submit the affidavit however that is not fatal to the current request allowing them to respond to the respondent’s submissions.”
27Considering the submissions of both parties, I find that the respondent has failed to establish that the Tribunal breached the rules of natural justice or procedural fairness. The respondent was given an opportunity to respond. The Tribunal determined that cross-examination was not required to ensure a full and fair hearing and had the discretion to limit cross-examination. I find no breach of the rules of natural justice or procedural fairness.
28In reaching my decision, I refer to the decision of 17-004229 v. The Gaurantee Company of North America, 2018 CanLII 112115 (ON LAT) at para 7:
29The Tribunal’s duty of procedural fairness to parties is to ensure they understand the case they have to meet and allow them to respond accordingly. In this case, the respondent has not demonstrated it will suffer any real prejudice in that regard.
CONCLUSION
30For the reasons noted above, I dismiss the respondent’s request for reconsideration.
Maureen Helt
Vice-Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 14, 2019