16-000372 v Unica Insurance Inc., 2017 CanLII 35319

May 29, 2017

Adjudicator: Linda P. Lamoureux, Executive Chair

Application for Reconsideration

On February 24, 2017, the Tribunal determined that the Applicant was not entitled to attendant care benefits following a 2014 motor vehicle accident.  The Tribunal held that her knee injury was not caused by the accident but instead by a fall in 2015. The Applicant applied for reconsideration.

Issue/Argument #1: Tribunals’ Breach of its Duty of Procedural Fairness

The Applicant argued that the tribunal breached its duty of procedural fairness by ordering a written hearing.  Due to the complexity of the issues, the hearing should have been oral or a hybrid, the parties should have had the opportunity to call an expert and other witnesses, and the tribunal should have requested affidavit evidence.  The adjudicator did not accept any of the three arguments:

The Tribunal is the master of its own procedure and the rules allowed for a written hearing to decide the matter.  Furthermore, the Applicant admitted that she did not object to a written hearing at the time the procedural order was made and therefore raising the objection at the current time was too late in the process.

The Adjudicator Lamoureux further held that in any event, the Applicant was not prejudiced.  The Applicant can satisfy their onus of proving his or her claim under the Schedule on a balance of probabilities by adducing affidavit evidence.

Issue/Argument #2: Tribunal Applied the Incorrect Test for Causation

The adjudicator cited the original decision demonstrating that the Tribunal referenced both the “but for” and “material contribution” tests.  It was the Tribunal’s role to weigh the evidence and determine the cause of the knee injury.  The Tribunal placed greater weight on the evidence suggesting that the 2015 caused the knee injury, and articulated the lack of evidence to support the causal connection between the 2014 accident and the injury.  The conclusion was therefore not a result of the Tribunal’s choice of legal test, but instead based on the evidence adduced.