CITATION: Shahin v. Intact Insurance Company, 2024 ONSC 2059
DIVISIONAL COURT FILE NO.: 178/23
DATE: 20240416
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Le May, and O’Brien JJ
BETWEEN:
Nahed SHAHIN
Appellant
– and –
INTACT INSURANCE company
Respondent
A. Fabio Longo and Kristy Kerwin, for the Applicant
Susan Clarke and Lauren Kolarek, for the Respondent
Jesse Boyce, for the Licence Appeal Tribunal
HEARD: March 28, 2024 in Toronto
O’BRIEN J.
REASONS FOR DECISION
Overview
[1] The issue on this appeal is whether the appellant, Ms. Shahin, was accorded procedural fairness during a hearing before the Licence Appeal Tribunal. Ms. Shahin was involved in a motor vehicle accident in 2013. She applied for accident benefits from her insurer, the respondent Intact Insurance Company, claiming she had suffered a catastrophic impairment. After Intact denied the catastrophic impairment claim, Ms. Shahin applied to the Tribunal for a determination that she was catastrophically impaired. She sought related accident benefits.
[2] Following a hearing that proceeded over several days, in an amended decision dated February 22, 2023, a panel of two adjudicators found Ms. Shahin was not catastrophically impaired. The Tribunal reasoned that the accident did not cause Ms. Shahin’s mental condition, and, in any event, her condition did not meet the level of catastrophic impairment.
[3] Ms. Shahin submits the hearing was procedurally unfair in several ways. Her central submissions are as follows: First, the Tribunal unfairly relied on the evidence of Intact’s expert, Dr. West. Dr. West, a neuropsychologist, prepared a report in which he diagnosed Ms. Shahin with an adjustment disorder but did not find her to be catastrophically impaired. He testified in-chief at the hearing but when the time originally allocated for his cross-examination was used to hear a motion, he never re-attended to be cross-examined. Ms. Shahin submits the Tribunal unfairly failed to insist he attend for cross-examination and breached procedural fairness by relying on his evidence in its decision.
[4] Second, Ms. Shahin submits the Tribunal considered the issue of causation when Intact had conceded it was not in issue. She submits it was procedurally unfair to proceed in this manner, particularly given that the Tribunal addressed the issue without notice or a request for submissions from the parties.
[5] Third, in Ms. Shahin’s submission, the Tribunal unfairly relied on documents to her detriment that were not referenced by the parties and that Ms. Shahin was not given an opportunity to address after having told the parties that only information that was pinpointed by counsel would be considered by the Tribunal.
[6] I will address each of these submissions below. Overall, I agree with Ms. Shahin that the hearing violated her right to procedural fairness. The matter therefore is remitted to the Tribunal for a new hearing.
Jurisdiction and Standard of Review
[7] This Court has jurisdiction to hear this appeal under s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G because Ms. Shahin’s application before the Tribunal related to her entitlement to benefits under a regulation of the Insurance Act, R.S.O. 1990, c. I.8.[^1] Pursuant to s. 11(6) of the Licence Appeal Tribunal Act, an appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only.
[8] Appellate standards of review apply to questions of procedural fairness in a statutory appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at para. 27. For questions of law, the standard of review is correctness: Abrametz, at para. 30. However, courts will accord deference to a tribunal’s procedural choices given the tribunal’s authority to control its own process, so long as the requirements of procedural fairness are met: Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 231; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 27.
Did the Tribunal breach procedural fairness by relying on the evidence of Intact’s expert when he was not cross-examined?
[9] Ms. Shahin submits the Tribunal breached procedural fairness by not requiring Dr. West to re-attend for cross-examination. Dr. West had provided nearly 100 transcript pages of untested oral evidence. He initially re-attended but left when a motion brought by Ms. Shahin used the time allocated for his cross-examination. He did not respond when he was contacted to reattend. In Ms. Shahin’s submission, it is impossible to know that his unchallenged evidence did not influence the adjudicators. Further, in their reasons, the adjudicators cited the transcript of his evidence and relied on his report.
[10] Intact submits that the references to Dr. West’s evidence did not prejudice Ms. Shahin. It emphasizes that the Tribunal did not rely on Dr. West’s opinion regarding whether Ms. Shahin sustained a catastrophic impairment. Intact also submits that Ms. Shahin’s counsel strategically delayed cross-examining Dr. West by bringing a motion on the day that was allocated for Dr. West’s cross-examination.
[11] In my view, the Tribunal breached procedural fairness. Both parties rely on Baker, at paras. 23-27, for the factors to determine the level of procedural fairness owed in the circumstances of a particular case. In this case, those factors point to a high level of procedural fairness. This is most clearly evidenced by the nature of the hearing itself, which proceeded as a full, contested, oral hearing, with witnesses, including experts, examinations, and, apart from Dr. West, cross-examinations. The issues in the case were of substantial financial importance to Ms. Shahin.
[12] Once it became clear that Dr. West did not plan to re-attend for cross-examination and the Tribunal determined it would not order him to do so, it should have disregarded his evidence and struck his report from the record. The Tribunal instead concluded that, because in its view, Ms. Shahin failed to meet her burden to prove she was catastrophically impaired, there was “no reason to consider the testimony of Dr. West to determine the applicant’s entitlement to the treatment plans in dispute, or if the applicant should be determined to be catastrophically impaired” (at para. 15 of the decision). However, the Tribunal went on to rely on components of Dr. West’s evidence in its decision.
[13] At para. 29 of the decision, for example, the Tribunal cited Dr. West’s oral evidence for the proposition that “Clonazepam is anti-anxiety medication,” which Ms. Shahin was taking at the time of the accident. The Tribunal reasoned that Ms. Shahin’s anxiety was a pre-existing condition that was not exacerbated by the accident since her use of Clonazepam gradually decreased after the accident.
[14] But the evidence of Ms. Shahin’s expert psychiatrist, Dr. Waisman, was that Clonazepam is a tranquilizer and is not a treatment for anxiety. Counsel for Ms. Shahin state that, had they been given the opportunity to cross-examine Dr. West, they would have put to him that, as a neuropsychologist, it was not within the scope of his expertise to comment on the use of medication.
[15] I do not accept Intact’s submission that the specific use of Clonazepam was of little significance. In Intact’s submission, the important point is that Ms. Shahin was being treated for psychological symptoms before the accident and her need for medication did not increase after the accident. In the face of Ms. Shahin’s evidence that she was suffering severe anxiety at the time of her testimony, the Tribunal found that Ms. Shahin’s anxiety was a pre-existing condition (at para 24 of the decision). Her specific psychiatric condition at the time of and after the accident mattered in determining whether and the degree to which the accident impacted her.
[16] The Tribunal also relied on information Ms. Shahin told Dr. West, as relayed in his report, to contradict Ms. Shahin’s position at the hearing on why she was socializing less. Socialization was one of the factors relevant to determining Ms. Shahin’s level of impairment. At para. 67 of the decision, the Tribunal quoted from Dr. West’s report that Ms. Shahin had a decrease in socialization due to the COVID-19 pandemic. It used this evidence to corroborate Intact’s position that her reduced socialization was not an exacerbation of her pain or psychological symptoms. Ms. Shahin’s counsel never had the opportunity to cross-examine Dr. West on whether he fairly and accurately reported the information Ms. Shahin had provided to him.
[17] Contrary to Intact’s submission, s. 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 does not assist. It authorizes a tribunal to “reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.” This is not a situation where the Tribunal limited further cross-examination; there was no cross-examination of Dr. West whatsoever. In addition, little or no deference is owed to the Tribunal on its choice of procedure given that it did not provide reasons for its decision on this point, other than to say it would not rely on Dr. West’s conclusions on the central issues. It did not provide any explanation or justification for relying on other untested information in Dr. West’s evidence to Ms. Shahin’s detriment.
[18] The Tribunal referred to Dr. West’s evidence both to support its conclusions that the accident did not cause Ms. Shahin any injury and that her impairment did not rise to the level of catastrophic. The Tribunal of course also relied on substantial other evidence in support of these conclusions. Still, Dr. West’s evidence infected the Tribunal’s conclusions on the central issues governing its decision. In these circumstances, the Tribunal’s reliance on the untested evidence of Dr. West breached procedural fairness.
Did the Tribunal breach procedural fairness by deciding the causation issue without notice to the parties?
[19] I also agree with Ms. Shahin’s submission that the Tribunal breached procedural fairness by deciding she was not entitled to benefits in part because the accident did not cause her mental condition.
[20] In their opening statements, both parties took the position that causation was not in issue. Counsel for Ms. Shahin stated that the medical reports “confirmed that causation was not in dispute” and stated: “[T]his case is not about causation.”
[21] In its opening statement, Intact disputed Ms. Shahin’s level of impairment, but not causation. Counsel for Intact emphasized that the “crux of [the] matter” was the distinction between whether Ms. Shahin’s mental impairment was at a class 2 impairment (as opined by Dr. West) or a class 4 impairment (as opined by Dr. Waisman). Only the class 4 impairment would support a finding of catastrophic impairment. But counsel did not dispute that the accident caused Ms. Shahin physical and psychological injuries. She stated:
While Intact acknowledges that Ms. Shahin did suffer from diagnosed physical and psychological injuries as a result of this car accident, you will hear that the reality is that she does not suffer from a mental, or behavioural impairment that renders her catastrophically impaired with respect to adaptation. [Emphasis added.]
[22] Intact’s position on causation did not change through the course of the hearing. While counsel for Intact cross-examined Ms. Shahin on her pre-accident health, its reliance on this evidence in closing was for the purpose of impeaching Ms. Shahin’s credibility. It was not to contest that the accident caused Ms. Shahin any injury. The argument was found in the portion of the Intact closing submissions, under the heading “Ms. Shahin is not credible.” The sub-headings in that section read “Ms. Shahin minimized her pre-accident medical condition” and “Ms. Shahin significantly exaggerates her post-accident life and health.” Intact did not provide any argument or cases addressing causation.
[23] The Tribunal did not otherwise advise the parties that it was considering causation. Ms. Shahin therefore had no notice or opportunity to make legal or factual submissions addressing the issue.
[24] Causation was a critical issue in the Tribunal’s analysis. If the accident did not cause any injury, Ms. Shahin had no opportunity to recover benefits. The Tribunal went on to find that Ms. Shahin’s condition also did not rise to the level of catastrophic impairment but the finding that there was no causation was the first important step in its analysis.
Did the Tribunal breach procedural fairness by relying on documents neither party referred to and that Ms. Shahin was not given an opportunity to address?
[25] Ms. Shahin submits the Tribunal’s repeated reliance on documents neither party referred to also breached procedural fairness. I agree.
[26] The adjudicators had voluminous documents before them. At the outset of the hearing, they advised the parties that “any document not referred to by pinpoint reference during oral arguments will not be reviewed.”
[27] The Tribunal then relied in its decision on numerous documents neither party had referred to. The parties agree that, although found in their hearing briefs, these documents were never admitted into evidence.
[28] This violated procedural fairness. The Court of Appeal has described the rule in Browne v. Dunn[^2] as preventing the “ambush” of a witness by not giving the witness an opportunity to state their position on later evidence that contradicts them on an essential matter: R. v. Verney, 1993 14688 (Ont. C.A.), at p. 376; R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 75-86. Here, the Tribunal made negative findings about credibility and impeached Ms. Shahin’s testimony using excerpts from medical records she was never questioned on.
[29] For example, at para. 61 of their decision, when discussing Ms. Shahin’s level of impairment, the adjudicators noted that in her testimony, Ms. Shahin stated that she had lost interest in spousal intimate relations because of the car accident. The adjudicators disbelieved her on this point, relying on medical records indicating that she suffered from uterine issues. These records and her uterine issues, including any impact on intimacy, were not put to Ms. Shahin. She had no opportunity to provide an explanation or response.
[30] At para. 73 of their decision, the adjudicators concluded that Ms. Shahin had not suffered a “substantial inability to perform the essential tasks of her pre-accident employment.” It relied on a job site analysis that found she did not have an issue with these tasks. But the job site analysis was not in evidence. The reference to the job site analysis was found in a report by an occupational therapist. Ms. Shahin alleges the OT’s report summarized a 70-page report in two paragraphs. Neither party referred to nor relied on this summary.
[31] Intact submits this reliance was not prejudicial because Ms. Shahin was cross-examined on her inability to work. But the cross-examination focused on 2018, not the 2015 period relied on by the adjudicators.
[32] The Tribunal relied on other evidence as well to conclude Ms. Shahin’s impairment was not catastrophic. Its assessment was highly fact dependent. But it is impossible to conclude the information she was not questioned on was of little significance. This information formed part of the Tribunal’s justification for its conclusion on Ms. Shahin’s level of impairment. It was an error to rely on this information, which was not in evidence, was not drawn to the parties’ attention, and which Ms. Shahin was not questioned on, in support of the Tribunal’s conclusion on this central issue.
Disposition
[33] In view of my conclusions above, it is unnecessary to address the other allegations of procedural unfairness raised by Ms. Shahin. To the extent Ms. Shahin alleges other legal errors, the appropriate remedy is to remit the matter to the Tribunal to address her submissions during a procedurally fair hearing. Contrary to Ms. Shahin’s submission on remedy, the issues in this case are heavily fact dependent. It would not be appropriate for the court to substitute its own conclusions on the issues before the Tribunal. Therefore, the matter is remitted to the Tribunal for a fresh hearing by a different adjudicator or panel of adjudicators.
[34] As agreed by the parties, Intact shall pay Ms. Shahin costs of the appeal in the amount of $5,000 all-inclusive.
_______________________________ O’Brien J.
I agree _______________________________
Lococo, J
I agree _______________________________
Le May, J
Released: April 16, 2024
CITATION: Shahin v. Intact Insurance Company, 2024 ONSC 2059
DIVISIONAL COURT FILE NO.: 178/23
DATE: 20240416
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Le May, and O’Brien JJ
BETWEEN:
Nahed SHAHIN
Applicant
– and –
INTACT INSURANCE company
Respondent
REASONS FOR JUDGMENT
O’BRIEN, J
Released: April 16, 2024
[^1]: O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010
[^2]: (1893) 1893 65 (FOREP), 6 R. 67 (H.L.)