Volume. 5 Issue. 46- October 20, 2021

In this week’s edition, we address two decisions on procedural matters. In the first case, the Tribunal confirms the positive responsibility a party has in bringing non-compliance on the part of an adverse party to the Tribunal’s attention, in order that an appropriate remedy may be ordered.

In the second case, the insurer is unsuccessful with a motion to stay the Applicant’s application for entitlement to IRB due to a failure to participate in a psychological IE. The Tribunal in finding that the insurer failed to provide the applicant with a notice to attend the IE was still required to consider procedural fairness were the insurer not to have the opportunity to address the psychological health of the Applicant. The Tribunal ultimately determined there to be no prejudice to the Insurer on the facts.

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No Costs Despite Failure to Comply With Order

Costs Are an Exceptional Remedy – In McDonald v Wawanesa (20-005392), McDonald sought reconsideration of a decision that they were not entitled to costs, based upon new evidence that was not available at the time of the hearing that would likely have changed the result.

The Tribunal accepted that the evidence, a FAX confirmation confirming that Wawanesa had only produced the AB file January 22, 2021, was in fact not available at the time of the hearing. This was in context of an order from the Tribunal to produce the AB file by November 27, 2020, and the fact that the file produced did not contain the adjuster’s log notes. However, the Tribunal did not accept that the absence of the notes prejudiced McDonald’s ability to state her case, hence would not have resulted in a different decision.

The Tribunal also made the point that “when a party fails to comply with an order, it is incumbent on an opposing party whose interests are affected to bring the non-compliance to the attention of the Tribunal in a timely manner so that an appropriate remedy may be ordered.” If in fact McDonald felt the notes to be central to her ability to make her case, “it is unclear to me why she did not raise an objection to the respondent’s non-compliance with the production order sooner than she did.” The Tribunal confirmed “costs are an exceptional remedy”. McDonald brought no motion for a procedural remedy in the nearly two months before the deadline for the filing of submissions.” Further, even after the late partial production, McDonald had the opportunity to seek a lesser remedy, such as a sur-reply, however “she did not take any such step”.

IE Attendance Not Required

Avoiding Mercurial or Haphazard Decisions – Aviva brought a Motion to stay the Applicant’s application for entitlement to IRB, due to a failure to participate in a psychological IE in Carter v Aviva (19-013446). After filing a psychiatric report in November 2019, Carter declined to attend the IE, contending that findings from earlier IEs should have been sufficient to evaluate his entitlement. With Carter having made clear that he would not attend the proposed IE, Aviva felt there was no need to file a Notice of Examination, as “it would have been a waste of money to organize an assessment that the respondent knew it would have to then cancel.” The Tribunal, though, found that Aviva’s decision not to send Carter the notice of the disputed psychological IE means it cannot request a stay of proceedings under s.55(1) of the Schedule.

Despite this finding, the Tribunal confirmed that it must still be satisfied that denying access to the IE would not breach Aviva’s right to procedural fairness. Procedural fairness, the “bedrock of any decision-maker’s legitimacy” was required, as without a fair process “even a reasoned decision may appear mercurial or, at the very least, haphazard…adjudicators must always be engaged in the process of ensuring that fairness is afforded to those that come before them.” To that end the Tribunal considered Gonsalves (Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986), wherein the timing of new expert reports triggered the need for an adjournment, because procedural fairness requires a chance to respond in kind to new evidence or arguments.

It was noted in this matter, Aviva “had several opportunities to ask for assessments of Carter’s psychological condition as it applied to the IRB, and yet failed to seize those opportunities.” Notably, upon being advised that Carter would not attend the IE in March 2020, it was not until July 2021 that Aviva filed the Motion under consideration. The Tribunal reasoned that such actions, in context of the failure to deliver a NOE rendered it “reasonable for the applicant to prepare for the hearing with the understanding that the respondent was not going to obtain a psychological opinion based on the IRB.” It was also found that it would be unfair to Carter “to now alter the playing field so close to the hearing”. Further it would not be reasonable to delay adjudication due to a decision not to secure an IE at an earlier stage.

Concluding, the Tribunal indicated that had Aviva not secured an earlier psychological report, the determination might have been different. However, while said report did not address entitlement to IRB, the Tribunal was “satisfied that the respondent will not be required to attend the hearing without some evidence to address this aspect of the applicant’s condition.”

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