RECONSIDERATION DECISION
Before: E. Louise Logan, Vice-Chair
Licence Appeal Tribunal File Number: 21-011748/AABS
Case Name: Francesco Di Giulio v. Aviva General Insurance
Written Submissions by:
For the Applicant: Kaitlyn MacDonell, Counsel
For the Respondent: Michael W. Chadwick, Counsel
OVERVIEW
1On October 26, 2023, the applicant requested reconsideration of the Tribunal’s decision dated October 5, 2023 (“decision”).
2In the decision, the Tribunal found that the applicant was not entitled to a treatment plan for chiropractic services, related interest, or an award under Regulation 664.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The applicant is seeking reconsideration pursuant to Rule 18.2(a) and (b). He requests that the decision be cancelled and a new hearing be ordered. In the alternative, the applicant requests that the decision be varied to find the applicant is entitled to the chiropractic treatment plan and an award under Regulation 664.
5The respondent argues the request for reconsideration should be dismissed.
RESULT
6The applicant’s request for reconsideration is granted. The decision is cancelled and a new hearing is ordered.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2(a) – Breach of Procedural Fairness
Hearing format & procedural orders regarding evidence
8In support of his reconsideration request, the applicant points to the procedural history in this application. It has involved a case conference where the Tribunal determined the matter was to be heard in writing and denied the applicant’s request to file affidavit evidence. These orders are set out in the Case Conference Report and Order (“CCRO”) dated August 11, 2022. On February 21, 2023, the Tribunal issued a Motion Order denying the applicant’s request to change the format of the hearing to a 1-day videoconference hearing. On April 26, 2023, an endorsement of The Honourable Justice Matheson of the Superior Court of Justice determined that the applicant’s appeal of the Tribunal’s February 21, 2023 Motion Order by way of a judicial review was premature.
9The applicant argues that the Tribunal violated procedural fairness when it denied him the right to file affidavit evidence, and when it denied him the right to testify and to cross-examine the respondent’s expert witness. He cites the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration) (1992) 2 SCR 817 (“Baker”).
10I see no violation of procedural fairness with respect to the Tribunal’s determination of the hearing format or whether the applicant could file affidavit evidence. I agree with the respondent that Baker does not mandate that tribunals provide oral hearings, allow affidavit evidence to be filed, or allow cross-examination. Rather, it provides that the duty of procedural fairness is “flexible and variable” and the content of the duty must be considered in the specific context of the case.
11Pursuant to section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Tribunal has the authority to control its own procedure. Furthermore, in establishing the format and making procedural orders with respect to the hearing, the Tribunal was acting under its authority as set out in Rules 3, 12 and 14 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.
12In this case, the issues in dispute are a treatment plan for $1,800.00, related interest, and an award under Regulation 664. After hearing from the parties, the Tribunal determined that a written hearing based on documentary evidence and without affidavits was appropriate. I see no violation of procedural fairness in this determination. In the CCRO, the Tribunal stated that a written hearing was the most expeditious, fair, cost-effective and proportional way to proceed given the nature of the issues in dispute. I find that this is in keeping with the specific context of the case, the Tribunal’s authority, and its mandate.
Consideration of the applicant’s evidence
13In his reconsideration submissions, the applicant also argues the Tribunal violated procedural fairness when it “refused to consider any evidence filed by the applicant”. While I do not agree that the Tribunal refused to consider any of the applicant’s evidence, I do find that the Tribunal did not review all the evidence the applicant referred to in his submissions and filed with the Tribunal. I find that this was a material breach of procedural fairness that establishes grounds for reconsideration under Rule 18.2(a).
14In support of his request for reconsideration, the applicant submits that the Tribunal accepted the submissions of the respondent despite being provided evidence to the contrary. He also points to a reference, at paragraph 16 of the decision, that the Tribunal could not locate the applicant’s evidence. The Tribunal stated as follows:
The applicant’s evidence is without pagination and despite reference to tabs, the tabs are not numbered. I cannot locate any letter or report from Dr. Vojvodich in the applicant’s materials. Rather, there are only barely legible notes from a physical therapist named Kara Newland and an email from Sandeep Bhasin, Chiropractor, sent to the applicant’s legal counsel dated December 5, 2022. Therefore, I am unable to assess CNR’s from a Dr. Vojvodich as referenced in the applicant’s submissions.
15I have reviewed the applicant’s submissions for the initial hearing. I find that they are paginated and tabbed, and that Dr. Vojvodich’s report is contained at tab 22 as referenced by the applicant in his submissions for the written hearing. Although the respondent argues that Dr. Vojvodich’s report is not relevant to the decision, I find that this is a determination for the Tribunal to make based on a review of the evidence. It is clear from paragraph 16 of the decision that the Tribunal did not consider this evidence. Of note, this is not a case where the Tribunal simply did not reference all the evidence it had considered in the course of arriving at its determination. In paragraph 16 the Tribunal explicitly stated that it could not locate, and therefore did not consider, the report of Dr. Vojvodich. The Tribunal did not consider this evidence despite it being filed in compliance with the August 11, 2022 CCRO. This was a material breach of procedural fairness.
16Accordingly, I find the applicant has established grounds for reconsideration pursuant to Rule 18.2(a).
Rule 18.2(b)
17As I have already found the applicant has established grounds for reconsideration under Rule 18.2(a), it is not necessary for me to consider his arguments in support of reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
18The applicant’s request for reconsideration is granted. The decision is cancelled.
19I am ordering a rehearing on the issues in dispute in this application. The rehearing shall be done by way of written submissions and shall be heard by a different adjudicator than did the initial hearing.
20The parties shall file with the Tribunal and serve written submissions, evidence, and authorities for the new hearing according to the following timetable:
| Submissions | Due Date | Page Limit |
|---|---|---|
| Applicant’s submissions, evidence and authorities: | 21 calendar days after the release of this reconsideration decision | 10 pages |
| Respondent’s submissions, evidence and authorities: | 14 calendar days after the filing of the applicant’s submissions | 10 pages |
| Applicant’s reply submissions or written notice that no reply submissions will be filed: | 7 calendar days after the filing of the respondent’s responding submissions | 5 pages |
21No affidavit evidence is permitted for the hearing. The submission page limits are exclusive of evidence and authorities. Submissions and document/authority briefs must be double-spaced, 12-point, Arial or Times New Roman font with 1.5 inch margins and be indexed, bookmarked/tabbed and consecutively page numbered. Submissions shall make specific reference to the evidence and law by tab and page number.
22The hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing requirements.
23If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: January 9, 2024