Panchalingam Nagalingam v. Economical Mutual Insurance Company, 2022 CanLII 23413

Citation: Nagalingam v. Economical Mut. Ins. Co., 2022 ONLAT 20-006884/AABS - R

RECONSIDERATION DECISION

Before: Jesse A. Boyce, Vice-Chair

Licence Appeal Tribunal File Number: 20-006884/AABS

Case Name: Panchalingam Nagalingam and Economical Mutual Insurance Company

Written Submissions by:

For the Applicant: Jono Schneider, Counsel

For the Respondent: Jason Frost, Counsel Modasir Rajabail, Counsel

OVERVIEW

1This request for reconsideration was filed by respondent, Economical. It arises out of a decision dated October 29, 2021, in which the Tribunal ordered a re-hearing on the second day of a scheduled three-day hearing after unilaterally declaring a mistrial during the proceedings. The hearing addressed the applicant’s entitlement to income replacement benefits, an award and interest.

2The parties participated in a case conference on November 30, 2021, and seemingly agreed that the adjudicator erred in ordering a new hearing and that the hearing should continue. While the applicant sought costs, the parties agreed to reserve new dates to resume the hearing, which is scheduled to proceed on November 28-30, 2022, via videoconference.

3The remaining dispute concerns the format and any resulting unfairness. Economical submits the appropriate remedy is to complete the hearing in a timely fashion at the earliest mutually convenient date and for the new adjudicator to be provided with the first two days’ transcript and evidence to avoid repeating evidence and to save the parties’ costs. As the first-instance adjudicator is no longer with the Tribunal, Economical submits that the hearing should resume on the first two days of transcript and evidence, subject to the applicant’s motion to the new adjudicator for a fresh examination in chief of the applicant or to deal with other evidentiary issues.

4The applicant agrees that the adjudicator erred but submits that the Tribunal’s order was not an order that finally disposes of an appeal, meaning the decision does not bar their claim and a reconsideration is not appropriate. The applicant asserts that if the hearing resumes, the new adjudicator would only be able to observe the applicant on cross-examination, which would be procedurally unfair. Further, the applicant submits that some of the evidence already admitted and some of the questions ordered answered are irrelevant. While the applicant submits they are most prejudiced by the Tribunal’s decision and agrees that it was an error, they did not offer a clear suggestion for relief.

RESULT

5The request for reconsideration is granted.

ANALYSIS

6The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (“Common Rules”). This request relies on criteria 18.2(a) and (b): that the Tribunal made errors of law and fact that resulted in procedural unfairness, such that the Tribunal would likely have reached a different result had the errors not been made.

The declaration of a mistrial was an error

7There is no doubt that the Tribunal committed errors of law and fact when it unilaterally declared a “mistrial” and ordered a new hearing in the middle of a three-day hearing. Where this declaration resulted in no determination on the substantive issues in dispute, these errors would obviously have led to a different result had they not been made, chiefly: the parties would by now have a final determination on the merits of their dispute rather than being subject to a delay and the various procedural steps imposed in between.

8In any case, the parties seem to agree—contrary to statements made in the Tribunal’s decision—that at no point did Economical advise the adjudicator that it wished to add the issue of whether s. 31 of the Schedule barred the applicant’s claim for income replacement benefits. Economical asserts that it did not make submissions to add this issue and did not bring a motion to add it as a new issue, but rather, that any non-compliance issues were raised as a defence. To their credit, the applicant does not necessarily dispute this, although they argue that the relevance of Economical’s line of questioning and certain evidence was not particularly clear if it was not raising material misrepresentation. I note Economical’s response, the case conference summaries and the Case Conference Order confirm that the issue of s. 31 was not before the Tribunal.

9Instead, the adjudicator’s concerns arose after Economical pursued a line of questioning that the adjudicator seems to have interpreted as raising the issue of material misrepresentation, an issue that the decision indicates was not before the Tribunal and that, in the adjudicator’s view, if raised, would prejudice the applicant. At para. 6 of the decision, the adjudicator provided his ruling:

6[…] The issue of a material misrepresentation being raised by the respondent when the applicant was not aware of this issue, was of sufficient scope to prevent the applicant from presenting his case fully, or from securing a fair adjudication on the merits. In my view, an issue such as material misrepresentation should have been dealt by way of a preliminary motion. I did not see any other option or remedy to save this hearing in a way that is just and fair in the circumstances. I have determined that I must order a new hearing.

10As Economical asserts, at no time did either party ask the Tribunal to deal with the issue of s. 31 or material misrepresentation. Compounding this error is the fact that neither party requested a new hearing, brought a motion for a new hearing, was given an opportunity to make submissions regarding the adjudicator’s unilateral declaration and both stated on the record that they wished to proceed with the hearing. When the parties asked the adjudicator to pause the proceeding to allow a review of the transcript, the proposal was also rejected. It is unclear why the adjudicator failed to heed the parties’ positions or reconsider their requests to keep the matter alive. Accordingly, the Tribunal’s decision to order a re-hearing has prejudiced the parties and runs afoul of the Tribunal’s mandate to ensure the fair and efficient resolution of disputes.

11In addition, the adjudicator erred in his declaration because the Common Rules do not contemplate a “mistrial” or the ordering of a new hearing by a first instance adjudicator without submissions from a party. This avenue of relief is only available after granting a request for reconsideration, as under Rule 18.4(b)(ii), the Tribunal may “Order a rehearing on all or part of the matter.” I find this is the appropriate relief because the declaration of a “mistrial” and the ordering of a new hearing, while significant procedural and legal errors, finally disposed of the first two days of evidence from a hearing that only concerned a single benefit.

12While I appreciate the applicant’s argument that the decision did not finally dispose of the appeal to trigger Rule 18.1, this dispute remains in limbo—prejudicing the applicant further—unless the Tribunal provides direction on how to proceed. Further, where an adjudicator who is no longer with the Tribunal unilaterally declared a new hearing, I find it difficult to dispute that the adjudicator’s declaration was a final order, however irregular that order may be.

13In any case, I agree that this is an exceptional issue of procedural unfairness that requires rectification by the Tribunal through a broad approach.¹ While ss. 23 and 25 of the Statutory Powers Procedure Act provide the Tribunal with discretion to determine and control its own procedures in any particular proceeding, Rule 3.1 of the Common Rules also provides that the rules will be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative to facilitate a fair, open and accessible process and to ensure the efficient, proportional and timely resolution of the merits of the proceedings.

The hearing shall be a continuation on the transcript subject to the applicant’s motions

14A proceeding is either fair or it is not, and the overriding task of the Tribunal is to ensure that the requirement of procedural fairness is adhered to.² I agree with Economical that if a “new” hearing proceeds as ordered, it will be based upon the identical issues, witnesses, and evidence. Where a transcript is already available and the hearing was nearly complete, I agree that proceeding de novo would be a waste of the parties’ and the Tribunal’s time and resources. Neither party should be prejudiced by the Tribunal’s error.

15Instead, I find permitting the parties to proceed on the first two days’ of the transcript and evidence—while affording the applicant the opportunity to bring motions for a fresh examination in chief and to raise any evidentiary concerns before the new adjudicator—would, in my view, be an efficient, fair and proportional remedy to preserve some of the time and financial costs already expended, while providing a safeguard for the applicant to address any concerns.

16Accordingly, the hearing shall be a continuation of the hearing already commenced but before a new adjudicator. The new adjudicator will be provided with the hearing transcript from the first two days for review in advance of the proceeding. At the outset of the new hearing, the applicant is invited to bring motions for a fresh examination in chief and to raise any evidentiary concerns before the new adjudicator, as requested. The issue of the applicant’s costs shall also be formally added to the issues in dispute.

17As noted, it is my understanding that a three-day hearing is currently reserved for November 28-30, 2022, via videoconference. In the interests of efficiency and fairness, on receipt of this decision, and if so desired, the parties are directed to contact the Tribunal to canvass earlier available dates. As the transcript is already available and the hearing was nearly completed previously, there is no reason that the parties should be forced to wait an additional eight months to complete this matter because of the Tribunal’s error.

ORDER

18The respondent’s request for reconsideration is granted. The Tribunal committed errors of law and fact that resulted in a violation of procedural fairness, which affected the outcome of the hearing.

19The Tribunal’s order for a re-hearing is cancelled pursuant to Rule 18.4(b)(i).

20Pursuant to Rule 18.4(b)(ii) and Rule 3.1, the hearing shall be a continuation of the three-day hearing that has already begun and for which a transcript is available.

21A new adjudicator shall be assigned. The hearing transcript shall be provided to the new adjudicator for review in advance of the hearing.

22The sole change to the issues in dispute shall be to add the issue of the applicant’s costs to the proceeding, as requested, pursuant to Rule 19 of the Common Rules.

23While discretion on how best to conduct the matter remains with the new adjudicator, at the outset of the hearing, the applicant shall be permitted to bring motions for a fresh examination in chief and to raise any evidentiary concerns.

24If so desired, the parties are also directed to contact the Tribunal to canvass earlier available dates to continue the hearing.

25If the parties resolve the issues in dispute, they shall immediately advise the Tribunal in writing.

Jesse A. Boyce Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Grewal v. Peel Mutual Insurance Company, 2021 CanLII 40734 (ON LAT).
2. 2See: Lockyear v. Wawanesa Mutual Insurance Company, 2022 ONSC 94,