It is widely understood that “natural justice” is the technical term for the rule against bias and the right to a fair hearing. In 17-000565 v Wawanesa Insurance Company, 2019 CanLII 22222 (ON LAT) (“Wawanesa”), Vice-Chair Trojek addresses an applicant’s Request for Reconsideration on a number of grounds, including that the Ontario License Appeal Tribunal (the “Tribunal”) violated the rules of natural justice or procedural fairness.
The crux of the Request for Reconsideration in Wawanesa was the Tribunal’s original decision (see: 17-000565 v Wawanesa, 2018 CanLII 13146 (ON LAT)) regarding the applicant’s credibility in connection with statements he made to certain medical assessors.
Specifically, on the Request for Reconsideration the applicant submitted that the Tribunal erred when it based its initial finding solely on the issue of credibility and found that the applicant’s injuries following a motor vehicle accident (“MVA”) fell within the Minor Injury Guidelines (“MIG”). Ultimately, Vice-Chair Trojek was not persuaded by the applicant’s arguments and the Request for Reconsideration was dismissed for the reasons that follow.
Totality of the Evidence
Contrary to the applicant’s submission that the Tribunal made an error in law because it based its decision on the issue of credibility, Vice-Chair Trojek held that the Tribunal had in fact “carefully weighed the totality of the evidence” and “provided sound reasons” for the finding that the applicant’s injuries did not fall outside the MIG.
Specifically, at the initial hearing (which was conducted in-writing) the applicant relied upon two medical reports: one by a chronic pain specialist; the other by a psychologist. Based on these reports the applicant argued that he suffers from injuries that fall outside the prescribed definition of a minor injury. However, as Vice-Chair Trojek noted, the Tribunal placed little weight on these reports because it found that the applicant’s pain and levels of post-MVA activity, as reported by the applicant to these assessors, were “incongruent with the surveillance and social media evidence submitted by the respondent”.
Vice-Chair Trojek also noted that the Tribunal had found that the post-MVA emergency room report, the applicant’s own treatment plans, and the medical evidence submitted by the respondent also confirm that the applicant’s injuries fell within the MIG.
For these reasons, Vice-Chair Trojek was satisfied that the Tribunal reviewed and based its initial decision on the totality of the evidence.
Natural Justice and Procedural Fairness
The applicant also argued that the Tribunal denied him “the right to be heard”. More specifically, the applicant suggested that the Tribunal “should have changed the format of the hearing to allow him to testify” and address any perceived “discrepancies in the evidence”.
Rule 9.1 of the Tribunal’s Common Rules of Practice and Procedure states that the Tribunal may, at any stage in a proceeding, order additional evidence or submissions it deems necessary for a full and satisfactory understanding of the issues. This was not such a case.
Having determined that the Tribunal did not base its initial decision solely on the applicant’s credibility, Vice-Chair Trojek held it “was not procedurally unfair” for the Tribunal to withhold its discretionary authority under Rule 9.1. More specifically, although Vice-Chair Trojek recognized that in some cases it may be reasonable for the Tribunal to change the hearing format from in-writing to oral, Vice-Chair Trojek also held that, in this case, despite being provided with numerous opportunities to do so, the applicant failed to 1) file additional evidence; 2) file a motion to change the hearing format; and/or 3) make reply submissions to the evidence as submitted by the respondent.
For these reasons, Vice-Chair Trojek was not convinced that the applicant was denied his right to be heard, or that the Tribunal was procedurally unfair to him when it did not “independently and on its own initiative” request oral evidence from the applicant at the hearing. Therefore, the Tribunal’s initial decision should not be overturned.
The message to insurers from this Request for Reconsideration is: while it is reasonable for the Tribunal to critically evaluate credibility, especially if it is going to be used as a basis to reject a claim, the Tribunal will nevertheless still weigh the facts in each case to determine if it should invoke its authority under Rule 9.1 for the purpose of changing a hearing format from written to oral.