RECONSIDERATION DECISION
Before: D. Stephen Jovanovic
File: 18-002962/AABS
Case Name: S.A. v. Guarantee Insurance
Written Submissions by:
For the Applicant: Kwaku Bona, Representative
For the Respondent: Caroline Meyer, Counsel
OVERVIEW
1The applicant has requested a reconsideration of a decision of the Tribunal dated December 20, 2018 whereby the adjudicator found the applicant was not entitled to Non-Earner Benefits (NEBs) from July 1, 2016 because she had not demonstrated a complete inability to carry out a normal life as a result of the motor vehicle accident.
2The applicant now submits that the adjudicator breached the rules of natural justice because of his:
A) Refusal to allow closing argument.
B) Failure to ensure that the applicant had accurate interpretation/ translation at the hearing.
3The applicant further submits that the adjudicator made significant errors of law or fact in that he:
C) Failed to appreciate that the medical report of Dr. Kaminker tendered by the respondent was based on a misstatement of the test for NEBs.
D) Erred in his determination of causation.
E) Failed to properly comprehend the entire evidence.
F) Exhibited a reasonable apprehension of bias.
4Finally, the applicant submits that there is new evidence, an ODSP report, that should now be considered. As part of his submissions, the applicant filed an affidavit from an interpreter, Kos Ahmed, in support of his argument on the quality of the interpreter.
5For the reasons that follow, the request for reconsideration is allowed and a new hearing is ordered.
BACKGROUND
6The applicant was involved in a motor vehicle accident on February 5, 2016 sustaining injuries to the left side of her body, her neck and left shoulder, left arm, breast, knee, mid and lower back. She also claimed to be suffering from headaches, dizziness, depression and experienced difficulties sleeping.
7The applicant’s claim for NEBs was denied by the respondent as it took the position that she did not suffer from a complete inability to carry on a normal life. After filing her application with the Tribunal a case conference was arranged and as the matter did not settle an order setting out the procedure for the hearing was issued, on consent.
8The case conference was conducted on July 5, 2018 and paragraphs 3 and 4 of the order issued after the case conference read as follows:
On consent, a combination hearing is scheduled. Primarily a written hearing is scheduled on November 19, 2018 followed by a one-day in-person hearing on November 27, 2018 in Toronto starting at 9:30 a.m. for the testimony of the applicant.
The parties will serve their written submissions and the evidence on each other and file with the Tribunal according to the following timetable:
Applicant initial submissions: October 9, 2018 (10 page limit)
Respondent response: October 22, 2018 (10 page limit)
Applicant reply, if any: November 5, 2018
9The hearing proceeded accordingly with the applicant testifying through a certified Somali interpreter. At the conclusion of her evidence, the applicant’s representative indicated that he wished to make a closing argument. The adjudicator took the position that the parties agreed at the case conference that their written submissions comprised their closing arguments. The applicant’s representative indicated that he had not agreed to that. Closing argument was not allowed by the adjudicator. In my view the adjudicator denied the applicant procedural fairness for doing so.
ANALYSIS
A) The refusal to allow closing argument.
10Following the hearing, the applicant wrote to the Tribunal alleging that the adjudicator’s refusal to allow closing argument was a denial of natural justice and cited sections 3(1) and 10 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22.
11The adjudicator dismissed that argument in his decision and dismissed the application. He wrote the following:
I disagree. There is no mention of closing argument in either of ss. 3(1) or 10 of the SPPA. Further, section 25 of the SPPA and Rule 14 of the Tribunal’s Common Rules of Practice and Procedure provides jurisdiction to make orders with respect to the procedures that apply in any particular proceeding. In addition, the Tribunal’s Case Conference Orders permit the hearing adjudicator to exercise their discretion during the hearing to ensure a timely and efficient proceeding.
At the case conference heard on July 5, 2018 – which S.A.’s representative was in attendance for—the parties were afforded every opportunity to structure the hearing in their desired manner. This includes the potential for allotting time for closing argument, opening statements, etc. Evidently, closing arguments were not contemplated by either party. Instead, the parties, on consent, agreed to a combination hearing consisting primarily of written submissions in advance with a one-day, in-person hearing for the sole [emphasis added] purpose of the testimony of the applicant. This is precisely what occurred on November 27, 2018.
As the Tribunal was following the direction in the Order that the parties agreed would govern their proceeding, I fail to see how S.A. was denied natural justice.
12The adjudicator did not conduct the case conference and in the face of the applicant’s denial that he consented to an order dispensing with oral argument, he should have allowed the same. The respondent’s submission that “There is no legal basis, in natural or procedural justice or within any applicable statute, for argument that the Applicant has some right to oral closing submissions.”, in so far as it may refer to oral or written closing argument, is not correct.
13In Ladney et al and Township of Moore, 1984 CanLII 2097 (ON HCJ), 46 O.R. (2d) 586, the appellant was not given the opportunity to make oral submissions before the Chairman of the Ontario Municipal Board conducting the hearing rendered his decision. The court wrote the following:
While we are quite satisfied that the chairman wished to conduct the hearing in an entirely impartial and fair manner, we are all of the view that the procedure that I have outlined resulted in a denial of the right of the applicant to a full and fair hearing. The established procedures in our courts and before the board require that a party be given the opportunity, not only to call evidence, but to present submissions or arguments before a decision is rendered. The only exceptions to this are those cases in which the court does not require to hear from a party before arriving at a decision in his favour, and cases in which the parties do not choose to make submissions. This might occur in a case in which the position being taken by a party had become perfectly obvious by the time the evidence was finished, without any submissions being necessary. Nothing of that type occurred in this case, however.
Apart from established procedures, s. 10 of the Statutory Powers Procedure Act, R.S.O., c. 484, provides that a party to proceedings may at a hearing call and examine witnesses and present his arguments and submissions.
14I do not read Ladney as requiring closing submissions in every case, but the decision is instructive on why counsel should be given the opportunity to present them.
15In my view, there were a number of reasons why the applicant should have been given the opportunity to provide closing argument or submissions. First, the case conference did not expressly exclude closing submissions. Second, the applicant’s representative stated that he had not agreed to waive closing argument. Third, the respondent did not take the position that the applicant had agreed during the case conference not to present closing submissions. Fourth, there was no harm in the adjudicator allowing closing submissions in some fashion yet there was potential harm in him not so allowing. The applicant had just testified and was cross-examined through an interpreter. Her evidence could have helped or hurt her position. That would only be known after she testified. Her representative should have been given the opportunity to deal with that evidence in a closing argument. Last, the argument could have been restricted in the delivery method, length or content that would not have interfered with the quest for a “timely and efficient proceeding.”
16The respondent submits that there has been “no cogent argument that closing submissions would have had any effect whatsoever on the result of the hearing.” In my view, that submission misses the point. The applicant should have had the opportunity to make closing submissions before the adjudicator.
17The extent or content of the duty of fairness is governed by some or all of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC). These are as follows:
the nature of the decision and the decision process followed;
the statutory scheme pursuant to which the body operates;
the importance of the decision to the individual affected;
the legitimate expectations of the person challenging the decision; and
the nature of deference accorded to the administrative body.
18As also stated in Baker, the content of the duty is driven by the circumstances of the particular case. Given the applicant’s claim that her injuries completely prevented her from carrying on a normal life, the amount of the NEB that would supplement her ODSB payments and assist in providing for her three children, the matter was of considerable importance to the applicant. The decision process could easily have accommodated the request to make closing submissions based on the new evidence just heard by the adjudicator.
19In light of my decision on this issue, I will not deal with the other grounds advanced by the applicant, except the last. The applicant submitted that the adjudicator exhibited a reasonable apprehension of bias. I have reviewed all of the allegations in support of this submission and conclude that it is without merit.
20The applicant has a recording of her evidence. The parties should consider whether that recording can be used, even in part, at the new hearing, or whether the evidence of the applicant is again required. A case conference will be conducted before the new hearing to settle this and any other procedural issues. These other issues may include whether any new evidence, documentary or otherwise, will be allowed.
CONCLUSION
21Pursuant to rule 18.4(b)(ii) I order a new combined hearing before a different adjudicator.
D. Stephen Jovanovic
Member
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: August 9, 2019