RECONSIDERATION DECISION
Before: Cezary Paluch
File: 19-004567/AABS
Case Name: [T. H.] vs. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Joseph Dart, Counsel
For the Respondent: Crystal A. Schulz, Counsel
OVERVIEW
1This request for reconsideration was filed by the respondent in this matter. It arises out of a decision released on May 14, 2020 in which the Tribunal found that the applicant was entitled to two treatment plans in dispute for optometric services and occupational therapy assessment (“Decision”).
2The applicant was involved in a motor vehicle accident on March 7, 2015 and claimed entitlement to benefits under the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). When those benefits were denied, the applicant submitted an appeal to the Tribunal. A combination type hearing was held on April 6, 2020. Para. 5(iii) of Tribunal Order dated October 15, 2019, scheduled a two-hour teleconference component on April 6, 2020 to allow the respondent to cross-examine the applicant on her Affidavit with the balance of the evidence being presented in written form including the Affidavit.
3The basis for this reconsideration is relatively straightforward as it is based on a misunderstanding of whether an affidavit formed part of the record or not. The respondent is seeking an order to: (1) cancel the decision; and (2) hold a rehearing solely on the written submissions, or by combination format, with cross examination being permitted on the affidavit sworn by the applicant on February 24, 2020 (the “Affidavit”).
4On March 6, 2020, during the teleconference portion of the hearing, the respondent only agreed to dispense with the cross examination of the applicant on her affidavit based on the belief that the Affidavit had been withdrawn from the record by applicant’s counsel and would not be considered by the hearing adjudicator. The Tribunal misunderstood this and thought the respondent was waiving its right to cross examinations and agreeing to include the Affidavit as part of the record.
5The applicant concedes that she believed the Affidavit would be withdrawn, and that the hearing would then proceed based on the written submissions only. However, she submits, that any perceived unfairness to the respondent in not cross examining the applicant had no effect, whatsoever, on the result in this hearing. Even without her affidavit evidence, the applicant argues, the rest of the evidence overwhelmingly supported the findings.
6The respondent asserts that it is entitled to a reconsideration pursuant to section 18.2 paragraphs (a) and (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) as amended (the “Rules”). Specifically, that the Tribunal: (a) acted outside its jurisdiction or violated the Rules of natural justice or procedural fairness; and (b) 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;
7A party seeking reconsideration has a high onus to meet. Minor or inconsequential procedural or substantive mistakes aren’t enough. Rather, reconsideration is only warranted where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, false evidence has been admitted, or genuinely new and undiscoverable evidence comes to light after a hearing.1
RESULT
8The respondent’s request for reconsideration is granted.
ANALYSIS
9A reconsideration is not an appeal and there are limited grounds upon which a person can request a reconsideration. In this case, the respondent asserts that the Tribunal violated the rules of procedural fairness and made error of fact such that the Tribunal would likely have reached a different decision had the error(s) not been made.
10I agree with the respondent and cancel my own Decision for the following reasons.
- Did the Tribunal make a significant error of fact in relation to the admittance of the Affidavit which led to procedural unfairness?
11Based on the submissions of the parties in this reconsideration, I accept that it was the respondent's intention to cross examine the applicant if the applicant chose to rely on affidavit evidence at the hearing and it was only as a result of the respondent's belief that an understanding had been reached that the Affidavit would not form part of the written submissions, that the respondent agreed that the cross examination would not be required. Moreover, if the Affidavit had not been withdrawn, I accept that the respondent wanted to cross examine the applicant having attended at the hearing on April 6, 2020. As a result, the respondent inadvertently was denied its right to cross examination the applicant and this led to the hearing process being incomplete and a violation of the respondent’s right to procedural fairness. In my view, this was not a minor or inconsequential procedural mistake as the respondent was not able to present their case fully and fairly.
12I find this error of fact and breach of procedural fairness by the Tribunal to be significant because in several places of the Decision the Tribunal clearly relied on the Affidavit in making its findings as to causation and in finding that the treatment plans were reasonable. For example, at paragraph 10 of the Decision, the Tribunal found the applicant’s Affidavit evidence to be unchallenged and uncontradicted stating that there was “no basis in the evidence for me to reject the applicant's evidence”. Moreover, as explained above, once the Affidavit was admitted, the respondent was denied its right to cross examine the affiant.
13The applicant submits that any perceived unfairness in not cross examining the applicant had no effect, whatsoever, on the result in this hearing. Although I sympathize with the applicant regarding the further delay in the adjudication of this matter, I do not agree that there was no unfairness, because the Tribunal assigned obvious weight to the Affidavit. Notably, the Affidavit included specific details about the accident and injuries she suffered including that her vision issues continue to this day. Further, in considering causation, the Tribunal at paragraph 10 referenced the Affidavit and injuries she had before and after the accident in arriving at its decision including noting that the “the respondent chose not to cross-examine the applicant on the contents of her affidavit.” This was of course a mistake since the respondent wanted to cross examine the applicant. Moreover, as the respondent explains in the reconsideration submissions, the primary issue to be canvassed on cross examination was the issue of causation and whether the applicant' s impairments for which she sought treatment were as a result of the March 7, 2015 motor vehicle accident or other unrelated factors. The Affidavit therefore was a key piece of evidence regarding causation, especially in a written hearing format such as this, and was relied on by the Tribunal and was also cross referenced in the applicant’s submissions at paragraphs 2, 3, 6, 7 and 8.
14The applicant submits that with respect to the second treatment plan at issue in this hearing (occupational therapy), the Tribunal found in favour of the applicant on procedural grounds that had nothing to do with the applicant's evidence. I agree. However, on this same issue, at paragraph 37, the Tribunal addressed the reasonableness and necessity of this treatment plan referencing the Affidavit. More to the point, the Tribunal clearly relied on the applicant’s statements that she “found the occupational therapy treatment helpful, it alleviated her pain, and gave her strategies to deal with headaches and vision issues.” The Tribunal ultimately found the plan to be reasonable and necessary. Therefore, in summary, the Tribunal used the Affidavit in the consideration of both the technical procedural grounds of s. 38(8) and also if the treatment was reasonable and necessary.
15For the reasons provided above, I find that the error of fact made by the Tribunal and a breach of procedural fairness by the respondent were significant errors such that the Tribunal would have likely reached a different decision.
ORDER
16The respondent’s request for reconsideration is granted. The Decision of May 14, 2020 is cancelled.
17For the reasons noted above, I find that there was a clear misunderstanding and miscommunication which led to the Affidavit being improperly considered as part of the record when it should not have (or in the alternative, procedurally, the respondent should have been allowed the opportunity to cross examine the applicant on the Affidavit).
18Therefore, I order that this matter be reheard by a different member of the Tribunal as soon as possible on the written submissions as already filed for the original hearing, without the noted Affidavit, to redetermine the issues in dispute.
19As it is the objective of the Tribunal in all cases, the parties are encouraged to discuss and resolve the issues on their own especially given the prolonged history of this matter.
Released: December 30, 2020
Cezary Paluch
Adjudicator