Volume. 5 Issue. 16 – April 14, 2021
We consider a judicial review, with the Court taking a rather dim view of Counsel’s repeated attempts to put up roadblocks to prevent IE scheduling, as well as a Reconsideration where the Tribunal found it necessary to amend their Rules.
Read our latest Blog on The 86% Solution – Year 5 LAT Stats
Court Not Amused With S.44 Roadblocks
The Court Was Not Amused – In a judicial review, the Court began with a cautionary note: “Litigants, whether they are before an arbitrator or a trial judge must, absent exceptional circumstances, proceed with their litigation to its ultimate conclusion before anyone aggrieved with an interim ruling or order initiates an appeal or an application for judicial review… Litigation in general would come to a grinding halt if an aggrieved litigant sought redress in a higher court every time he or she lost an argument during a trial or arbitration. This application for judicial review should serve as a reminder to heed this basic direction.”
In Cura v Aviva, the Respondent arranged a series of assessments with respect to whether Cura was catastrophically impaired. While Cura attended all three assessments with regulated health practitioners, she then took the position that her consent did not extend to the vendor who had arranged same. As a result, the Respondent was prevented from obtaining the reports. In a preliminary decision, the Tribunal found that this was tantamount to failing to participate in the examination process. Therefore, the substantive application was stayed until Cura consented to a release of the IEs by the vendor. Cura sought reconsideration; however, this was denied as per Rule 18 as the preliminary decision was not a decision that finally disposed of an appeal.
Cura applied to the Court for judicial review, with the Court further noting that she “did not appeal to this court under s. 11(6) of the Act, which may have allowed her to appeal to this court on any question of law.” The Court raised the issue of prematurity and heard arguments from the LAT as well as counsel for both parties. Cura suggested that the original consent to the s.44 IEs was “coerced”, hence impacting her Charter rights and rights under PIPEDA. This was therefore proposed to constitute “exceptional circumstance warranting this court’s intervention by way of judicial review.” The Court found that the “attendance at the IEs without objection by her counsel negates any argument about coercion. We see no merit to this argument whatsoever.”
The Court further noted that Counsel for Cura has previously sought to influence the process of how IEs and defence medical assessments are conducted by bringing these issues before the LAT and the Superior Court. Reviewing these cases “makes clear that counsel’s attempts to put up roadblocks to prevent medical examinations otherwise compliant with s. 44 from taking place as mandated have been unsuccessful…If there is any air of reality to the suggestion that counsel or the insurer or [IE vendor] ghostwriter improperly influenced an expert witness, cross-examination before the trier of fact is the means to expose it, rather than premature applications such as the one before this court.” The Respondent was awarded costs in the amount of $7500, with the LAT not seeking costs.
Tribunal Bends the Rules
Tribunal Bends the Rules – In R.K.K. v Co-operators (19-002834), a Reconsideration, the Tribunal found that there was a misapprehension of evidence, in one instance fundamentally so. It was also found that the reasons provided by the hearing adjudicator in the original decision were inadequate. One example being IRB, wherein the “reasons neither identify the key factual findings the hearing adjudicator is making or demonstrate how the relevant legal test applies to those facts, and no clear reasons are given for the hearing adjudicator’s ultimate finding.”
Ultimately, the “cumulative impact of the hearing adjudicator’s errors is to raise doubt that he was alert and sensitive to the matter before him.” Further, “the reasons for the decision fail to meet the standards of justification, transparency and intelligibility established in the case law. Reconsideration is warranted on this basis alone.”
However, the Tribunal found it “necessary for me to vary Rule 18.2(b) to permit an order granting reconsideration without a positive finding that the Tribunal would likely have reached a different result had the errors not been made.” It was contended by the Tribunal that “to conclude that the Tribunal would likely have reached a different outcome had it not made these errors would require me to weigh evidence and substitute my own findings for those of the hearing adjudicator.” Therefore, the Tribunal decided to “refrain from determining whether the outcome would have been different had the hearing adjudicator drafted transparent, intelligible and justified reasons for decision.” It was also found “inappropriate for me to substitute findings for those of the hearing adjudicator, as the applicant requests, based solely on my review of the transcript and documentary record.” As a result, a redetermination on the existing record by the original adjudicator was ordered.
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