In the originating case of JR v. Certas Home and Insurance Company, the Tribunal dismissed an Application that sought chronic pain and physiotherapy treatment based on “a lack of information and insufficient evidence” supporting the claim. The Tribunal favored the Insurer’s evidence by way of insurer examinations that concluded that the Appellant’s injuries have resolved and that no further treatment was necessary.
The Appellant applied for reconsideration and, among others, submitted complete copies of the disputed Treatment Plans which he failed to provide at the initial hearing. It is not known as to why he failed to provide these initially.
Relying on Rule 9.1 the LAT Rules of Practice and Procedure, the Executive Chair permitted the complete Treatment Plans at the reconsideration and found:
It appears that J.R.’s counsel recognized his disservice to his client when he received the Tribunal’s decision. In filing J.R.’s request for reconsideration, he included complete copies of both OCF-18s. Certas argues that the OCF-18s do not qualify as “new evidence” within the meaning of Rule 18.2(d) and, thus, should not be considered. I view the matter differently. Based on the nature of J.R.’s claim and, more particularly, given the concerns about his evidence that the Tribunal raised, the Tribunal erred in not asking for these copies earlier. Accepting them now simply cures the Tribunal’s earlier mistake.
Rule 18.2 specifically states that a request for reconsideration will not be granted unless the Executive Chair is satisfied that, among others, “there is new evidence that could not have reasonably been obtained earlier and would have affected the result”. Despite the undisputed fact that the Treatment Plans submitted are indeed not new and lack of reason from the Appellant as to why they were not introduced then, the Executive Chair determined that the Tribunal’s error in failing to exercise Rule 9.1 permitted her to intervene and allow the evidence.
Rule 9.1 specifically states that, “The Tribunal may at any stage in a proceeding, including prior to a case conference, order any party to provide such further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding.” Despite recognizing the Appellant’s onus to adduce all evidence upon which he needs to rely on to prove his case as well as acknowledging that the Tribunal is not there to satisfy the Appellant’s evidentiary onus for him, the Executive Chair found that the Tribunal erred in failing to request the complete Treatment Plans during the written hearing. Pursuant to Rule 9.1, she felt that the Tribunal should have asked the Appellant for the complete Treatment Plans as they were necessary for a full and satisfactory understanding of the issues in the proceeding.
What is troubling about the Executive Chair’s emphasis of Rule 9.1 over that of Rule 18.2 is that it essentially goes against The Queen v. Palmer [1980] l SCR 759 with respect to admitting fresh evidence at appeal. Specifically, the Supreme Court ruled that fresh evidence “should generally not be admitted “if, by due diligence, it could have been adduced at trial”. The complete Treatment Plans, in this case, could have been adduced at the hearing by due diligence. These were not secondary documents but in fact were at the center of the dispute themselves. If the Appellant felt that only portions of the Treatment Plans were necessary to prove his case, the Tribunal should respect that. It should not intervene particularly where its intervention potentially conflicts with a clear rule that prohibits the introduction of fresh evidence at reconsideration.
Rule 9.1 is certainly a rule a party should acquaint itself with. Beyond potentially overriding Rule 18.2(d) and switching or sharing the onus with the Tribunal in satisfying the evidentiary onus in a hearing, it may also find use in overriding timelines in Rule 9.2 (disclosure of documents and list of witnesses) and 10.3 (disclosure of expert witnesses). After all, as this case tell us, Rule 9.1 permits disclosure at the Tribunal’s request at “any stage in a proceeding”.
Sharla Bandoquillo is a member of the Licence Appeal Tribunal practice group and the author of this blog. If you have a question about this blog or a similar file, please contact Sharla.
