AMENDED RECONSIDERATION DECISION
Before: Lindsay Lake, Vice-Chair
Licence Appeal Tribunal File Number: 22-008072/AABS
Case Name: Maninder Kaur v. TD General Insurance Company
Written Submissions by:
For the Applicant: Tanzeela Ansari, Counsel Ramendeep Minhas, Counsel
For the Respondent: Jeffrey F. Pasternak, Counsel
OVERVIEW
1On August 7, 2024, the applicant requested reconsideration of the Tribunal’s decision dated July 18, 2024 (decision).
2In the decision, the Tribunal found that the applicant:
(a) Did not sustain a catastrophic impairment under criterion 7 or 8; and
(b) Was not entitled to income replacement benefits (IRBs), the disputed treatment plans, interest, or an award.
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 a reconsideration of the decision based on Rules 18.2(a) and (b) for several reasons including that the Tribunal committed a material breach of procedural fairness when it shortened the length of the hearing which resulted in one of the applicant’s witnesses being unable to testify at the hearing.
5The respondent’s position is that the reconsideration request is without merit and should be dismissed.
RESULT
6The applicant’s request for reconsideration is granted. The decision is cancelled.
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) – The Tribunal Committed a Material Breach of Procedural Fairness
8I find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(a), as I find that the Tribunal committed a material breach of procedural fairness.
9The applicant submitted that the Tribunal committed a material breach of procedural fairness for several reasons, including by shortening the hearing which prohibited one of the applicant’s witnesses, Natalya Khramtsova, registered nurse, from testifying. Ms. Khramtsova was only available to testify during the second week of the hearing due to a scheduling conflict in the first week.
10The parties participated in a case conference on March 16, 2023 which determined, among other things, that the length of the videoconference hearing would be 12 days. This hearing length is reflected in the March 16, 2023 Case Conference Report and Order (CCRO). Paragraph 10 of the CCRO also stated that the orders contained therein were subject to the hearing adjudicator’s discretion.
11On February 22, 2024, the applicant emailed the Tribunal and provided a witness list for the videoconference hearing which included Ms. Khramtsova, noting that her evidence would be “on Attendant Care Needs.”
12At the outset of the hearing, the Tribunal shortened the length of the hearing from 12 days to six days. This change in hearing length is reflected in paragraph 4 of the decision which states:
At the start of the hearing, upon consideration of the number of witnesses the parties intended to call, we issued an order that the hearing would proceed in six days, which would accommodate approximately two witnesses per day. At the case conference, this matter had been initially set-down for a 12-day hearing. The applicant objected arguing that rescheduling their witnesses would prevent certain witnesses from being able to provide their testimony.
13While the hearing adjudicators were entitled to consider how the matter before them would be heard, the hearing adjudicators were also obliged to exercise this discretion in a procedurally fair manner. The applicant submits that it was procedurally unfair to “limit the Applicant’s witnesses to specific timeslots when they were scheduled according to the original hearing schedule established at the case conference and availability of the witnesses.” I agree and find that in these circumstances proceeding with the hearing during only the first of two scheduled hearing weeks precluded the applicant from calling one of their witnesses. I further find that in adjusting the hearing schedule, the Tribunal did not consider any other alternative options to accommodate Ms. Khramtsova’s testimony, such as holding the hearing on non-consecutive dates.
14I am also not persuaded by the respondent’s position that there was no breach of procedural fairness in the Tribunal’s management of the hearing schedule, as Ms. Khramtsova could have testified during any of the six hearing days. The respondent submits that because the hearing was conducted via videoconference, Ms. Khramtsova could have “called into the meeting from almost anywhere in the world.” The respondent, however, fails to reconcile the apparent constraints on Ms. Khramtsova’s availability and the Tribunal’s duty to facilitate a fair process.
15Further, the respondent submitted that the Tribunal admitted Ms. Khramtsova’s reports from 2020 and, therefore, there was no prejudice to the applicant “for not being able to call Ms. Khramtsova.” The applicant included Ms. Khramtsova on the list of witnesses for the hearing and had always shown the intention of calling her to testify. The applicant even requested a summons to compel Ms. Khramtsova’s attendance during the revised hearing dates, which is further evidence that the applicant always intended to have Ms. Khramtsova testify at the hearing. Allowing Ms. Khramtsova’s reports into evidence does not remedy the prejudice to the applicant of not having Ms. Khramtsova’s testimony before the hearing adjudicators.
16For all these reasons, I find that the Tribunal committed a material breach of procedural fairness such that a reconsideration of the decision is warranted.
17As I have found that the applicant has established grounds for reconsideration, I do not need to consider the applicant’s other reconsideration arguments.
18The applicant’s request for reconsideration is granted under Rule 18.2(a).
CONCLUSION & ORDER
19The applicant’s request for a reconsideration is granted. The decision is cancelled.
20The Tribunal shall schedule a case conference within 30 days of the release of this decision.
21If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.
Lindsay Lake
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 17, 2025