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SPPA - Evidence [s.15]. Smith v. Real Estate Council of Ontario
In Smith v. Real Estate Council of Ontario (Div Court, 2024) the Divisional Court dismissed a JR challenging a RECO (Real Estate Council of Ontario) Appeal Panel disciplinary decision. These review cases are few in the courts.
Here the court considers the appeal allegation that the RECO tribunal improperly barred the applicant's expert witness evidence:[23] First, the Discipline Panel did not err in applying the formal test for the admissibility of expert evidence when deciding whether to permit Ms. Smith to call Mr. Metherall or Mr. Lebow. Ms. Smith is correct that the formal rules of evidence do not apply at administrative hearings. Administrative tribunals can admit any relevant evidence. Administrative tribunals have the discretion to admit expert evidence that does not meet the strict test for admissibility articulated by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15. The Mohan test focuses on (a) whether the expert opinion evidence is relevant, (b) whether the proposed expert is properly qualified to give the proffered opinion, (c) whether the expert evidence in inadmissible under any other rule of evidence, and (d) whether the evidence is necessary in the sense it is outside the expertise of the decision maker. While the Discipline Panel was not required to strictly apply the Mohan test, that does not mean it was an error for the Discipline Panel to do so. Administrative tribunals are not required to apply a lower standard. It is within their discretion to apply the four-part test for the admissibility of expert evidence from Mohan.
[24] Second, it was open to the Discipline Panel to decide, within its discretion, that the expert evidence was not admissible either because the opinions proffered were too close to the ultimate issue the Panel had to decide or because the expert evidence was not necessary.
[25] Ms. Smith relied on a recent decision in which this court found that the Licence Appeal Tribunal erred in excluding expert evidence: Connor Homes v. Director, 2021 ONSC 3195. In that case, the Licence Appeal Tribunal was considering a decision not to renew the Appellant’s residential care licence, which is required to operate a foster care home. The Appellant sought to adduce expert evidence on children’s mental health and fire safety. The Divisional Court held that the Licence Appeal Tribunal erred in finding the expert evidence was unnecessary. The court held that while the Licence Appeal Tribunal has expertise adjudicating licensing matters, it did not have expertise in children’s mental health or fire safety as it related to residential care facilities for children.
[26] The circumstances of this case are distinct from Connor Homes. Here, the Discipline Panel has expertise on the professional standards and practices of real estate agents in Ontario. The Discipline Panel had the reports from Mr. Metherall and Mr. Lebow and knew what evidence they would each give. Each opined that Ms. Smith acted appropriately and did not violate the Code of Ethics, which was the precise issue the Discipline Panel had to decide. And the proposed experts would have testified about issues that fall within the scope of the Discipline Panel’s expertise. It was, therefore, open to the Discipline Panel to decide that their evidence was not necessary.
[27] Finally, Ms. Smith argues that it was unfair to prevent her from calling expert evidence when a prosecution witness gave opinion evidence about how a prudent realtor should have acted in Ms. Smith’s circumstances. The Council called a Compliance Officer, Natalia Martinez, who gave evidence about what realtors should do if they are unable to confirm the taxes and local improvement charges through proper documentation, such as a tax bill. Ms. Martinez testified that the realtor should either leave that portion of the listing blank or, if the local real estate board requires the realtor to input a dollar value for the taxes, the realtor must include a disclaimer in the listing stating the realtor was not able to confirm the taxes. Ms. Smith argued that her experts should have been permitted to give evidence on the same issue in response.
[28] In my view, the Discipline Panel’s decision to exclude Ms. Smith’s experts was not unfair. Ms. Smith’s expert reports focused on whether she took reasonable steps to get accurate information about the taxes from her clients. Ultimately that was not the determinative issue. The Discipline Panel accepted Ms. Smith’s evidence about her efforts to confirm the property taxes. The Discipline Panel accepted that Ms. Smith asked her clients if the property was subject to a local improvement charge. Those efforts were set out in the agreed statement of facts. . Hamad v. Dominion of Canada General Insurance Company
In Hamad v. Dominion of Canada General Insurance Company (Div Court, 2024) the Divisional Court dismissed a joint appeal/JR (under Yatar) of a LAT ruling that found him not 'catastrophically impaired'.
Here the court considers the LAT's treatment of hearsay evidence:C. Tribunal’s use of hearsay evidence
[24] Mr. Hamad argues the Tribunal improperly relied on medical records from a doctor who did not testify at the hearing for the truth of their contents to undermine Mr. Hamad’s evidence. This argument cannot succeed for two reasons. First, hearsay evidence is admissible in a hearing before the Tribunal: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s 15(1). Second, Mr. Hamad did not argue that the medical records should only be admitted for a limited, non-hearsay purpose when they were tendered during the cross-examination of Mr. Hamad. If a party to a hearing before the Licence Appeal Tribunal is concerned about the admissibility or use that can be made of hearsay evidence, that party must raise their concern at the hearing, not on appeal: Sutton v. Patterson and Morrow, 2021 ONSC 1403, 154 O.R. (3d) 622 (Div. Ct.), at paras. 44 and 46. . Landa v. The Dominion of Canada General Insurance Company
In Landa v. The Dominion of Canada General Insurance Company (Div Court, 2024) the Divisional Court dismissed an appeal/JR settlement privilege issue, here of a reconsideration decision:[86] The LAT began its analysis by considering Ms. Landa’s request to refer to and rely on settlement communications between the parties. The LAT considered whether the evidence was relevant and whether, as it pertained to settlement discussions, privilege applied.
[87] The LAT found that this evidence was inadmissible pursuant to s. 15(2)(a) of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22 which reads:(2) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible in a court by reason of any privilege under the law of evidence. [88] We see no error of law in the LAT’s interpretation of s.15(2)(a). . Yan v. 30 Forensic Engineering Inc.
In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court reviewed both the administrative/SPPA 'control of process' and evidence jurisdiction, here in an HRTO context:[32] The HRTO has significant power to control its own process: see ss. 25.0.1 and 25.1.(1) of the Statutory Power Procedures Act, R.S.O. 1990, c. s.22 (“SPPA”). It can make rules to govern the practice and procedures before it so as to offer the parties before it, the best opportunity for a fair, just, and expeditious resolution of the merits of an Application: see s. 45.8 of the Code. That authority allows the HRTO to adopt practices and procedures that are an alternative to traditional adjudicative or adversarial procedures. The HRTO is also not bound by the strict rules of evidence; it has a broad discretion to admit relevant evidence, including hearsay, even if that evidence would not be admissible in a court: see s. 15(1) of the SPPA. . Lee v. Padathe
In Lee v. Padathe (Div Court, 2023) the Divisional Court clarifies that evidence given in tribunal proceedings need not be under oath or affirmation (ie. 'sworn'):[25] There is similarly no merit to the submission that the evidence at the hearing was not submitted under oath and that the Board failed to consider the authenticity and admissibility of documents. Subsection 15(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 authorizes a tribunal to “admit as evidence at a hearing” any oral testimony or document “whether or not given or proven under oath or affirmation or admissible as evidence in a court” (emphasis added). Ms. Kallikattumadathil does not raise a concern with the authenticity or admissibility of any particular document or other piece of evidence. Her bald allegations on this point do not raise a legal error of any merit. . Wilkin v. Health Services Appeal and Review Board
In Wilkin v. Health Services Appeal and Review Board (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against a ruling of the HPARB brought by a doctor who objected to OHIP's calculation of his billing submitted under the Schedule of Benefits for Physician Services, R.R.O. 1990, Reg. 552/92 (“Schedule of Benefits”). The specific issues were OHIP's use of expert evidence on the interpretation and application of the billing codes:[9] Dr. Davidson, on behalf of OHIP, testified as to how OHIP claims are assessed, the interpretation, application, and amendments to the Schedule of Benefits, and described the Ministry of Health’s rationale for disallowing the disputed fee codes in this case.
[10] The Applicant objected to Dr. Davidson giving opinion evidence on whether the claims in this case had been properly assessed. The Board ruled that it should hear the evidence because it would be relevant and helpful. The Board Chair noted that much of the evidence as described did not sound like opinion evidence, but that counsel could object to any opinion evidence. The Chair also observed that the Board was aware that Dr. Davidson was not a lawyer, and that questions of statutory interpretation would be for the Board to determine. Counsel for the Applicant chose not to object during the examination-in-chief of Dr. Davidson. Counsel cross-examined Dr. Davidson and raised a challenge to aspects of that evidence in her final submissions.
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Did the Board Unreasonably Admit the Evidence of Dr. Davidson?
[13] The Applicant acknowledges that Dr. Davidson gave fact evidence that was admissible as to context, the process of claims analysis and settlement, and the decision denying some of the Applicant’s claims for payment under the Schedule of Benefits.
[14] However, counsel for the Applicant submits that this fact evidence was interwoven with impermissible opinion evidence from an expert who, although qualified, was not an unbiased, neutral expert. The Applicant emphasized that Dr. Davidson was employed by the Ministry, was identified as the “client” during the hearing and was involved in an informal review of the fees claimed prior to the hearing before the Board.
[15] To summarize the findings on this question, I find that the Board reasonably received Dr. Davidson’s evidence, as an employee for one of the parties with expertise in the areas of orthopedic surgery and the application of OHIP billing codes to surgical procedures. Further, as the overview of Dr. Davidson’s evidence below shows, much of the evidence she gave was explanatory of OHIP’s process and decision. The Board accurately described this as fact evidence.
[16] The Board applied its own judgment to the central question in dispute: the application of the fee codes to the surgical procedures undertaken by the Applicant. Ultimately, the Board preferred OHIP’s interpretations of the disputed fee codes to those of the Applicant. Although he does not challenge the fact that this was a reasonable and available interpretation that was open to the Board, the Applicant submits that the error in permitting Dr. Davidson to testify meant that the application should be allowed, and a new hearing ordered before the Board.
[17] Specifically, the Applicant submits that the Board erred or acted unreasonably in describing Dr. Davidson as a “participant expert” as that term has been applied under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in civil proceedings and as described in the decision of the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721. Although the “participant expert” classification is not apt in the case of Dr. Davidson, this does not make her evidence inadmissible. The Board has wide latitude to admit evidence it finds to be relevant and useful. Further, Dr. Davidson’s evidence was akin to a type of expert evidence which is recognized in the civil context that applies to employees of a party.
Participant Experts in Civil Proceedings
[18] Westerhof recognizes that a broader group of witnesses with expertise may testify in civil claims even though this group would not meet the usual criteria for independent experts retained by a party. This broader group includes “participant experts” who may have been involved in the events underlying the litigation and have relevant expertise and information relative to the issues in dispute: for example, physicians who treat injuries that are relevant to personal injury cases. It also includes “non-party experts” such as statutory accident benefits insurers who form opinions for reasons separate from the litigation.
[19] In both such examples, participant and non-party experts are “not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation”: Westerhof, at para. 82. They are not litigation experts. In civil trials, counsel is not required to follow the provisions of r. 53 prior to tendering evidence from these witnesses such as having the witness prepare an expert report and sign an acknowledgement of the expert’s duty to provide fair, neutral and non-partisan opinion evidence within the scope of their expertise.
The Admission of Expert Evidence before the Board
[20] Section 23(4) of the Health Insurance Act, R.S.O. 1990, c. H.6 grants the Board the powers found in section 15 of the Statutory Powers Procedure Act (“SPPA”). That provision provides that:15 (1) …a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence... The Divisional Court has recognized that this section gives tribunals “wide powers concerning the admission of evidence, including experts”: Connor Homes v. Director, 2021 ONSC 3195 (Div. Ct.), at para. 47; Ontario Racing Commission v. Hudon, 2008 CanLII 68156 (Div. Ct.), at para. 23. In M.R. v D.E., 2016 ONSC 1542, the Divisional Court noted at paragraph 21 that in tribunal proceedings governed by the SPPA, while the principles in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 remain relevant to the admission of expert evidence, statutory tribunals are not bound by those principles.
Overview of the Evidence of Dr. Davidson
[21] Dr. Davidson testified first about her background and expertise, the nature of her role with OHIP, the claim and adjudication process within OHIP, and communications issued from OHIP to physicians to assist with billing. This can fairly be described as general fact and context evidence. It is not the subject of controversy.
[22] Dr. Davidson testified about the steps she took relative to Dr. Wilkin’s claims for treatment. She became involved after the OHIP assessment when Dr. Wilkin sought review by the Board. At that stage, she reviewed the material and provided a third level of review of the disputed codes OHIP payment decisions and denials. Counsel for the Applicant objected on the basis that Dr. Davidson’s opinion on the point was not admissible. Counsel’s objection was grounded in the submission that Dr. Davidson was not a “participant” expert. Counsel also raised fairness concerns because Dr. Davidson’s role in “adjudicating” the claim had not been disclosed until this stage.
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Discussion
[31] Dr. Davidson’s evidence was relevant and admissible evidence that fell within the discretion of the Board to hear. This flows from s. 15 of the SPPA as well as prior decisions of this court, as discussed above, which recognize that statutory tribunals have discretion including in choosing to admit opinion evidence.
[32] Further, although Dr. Davidson may not have been properly analogous to a “participant expert” as that label has been applied to certain types of witnesses in civil proceedings, this does not mean that evidence from someone in her role, and with her knowledge, would not be admissible on other alternative bases had this been a civil proceeding.
[33] Dr. Davidson was clearly not an independent expert retained to give an opinion in litigation, and the type of expert in civil proceedings to whom r. 53 applies. Nor does her role fit the criteria of a “participant expert”. The defining characteristics of a “participant expert” from Westerhof is a witness with expertise who is involved prior to the litigation and for a purpose unrelated to the litigation but related to the factual events underlying the litigation.
[34] However, Dr. Davidson did meet the criteria for a third type of witness, that being as a litigant’s employee with expertise.
[35] This category of witness was recognized in Kon Construction v. Terranova Developments Ltd., 2015 ABCA 249, 602 A.R. 327 as a potential source of opinion evidence. At paragraph 35, the Court of Appeal for Alberta described three categories of “experts”:(a) independent experts who are retained to provide opinions about issues in the litigation, but were not otherwise involved in the underlying events. This is the category of expert witness contemplated by White Burgess and Mohan.
(b) witnesses with expertise who were involved in the events underlying the litigation, but are not themselves litigants. An example is the family physician in a personal injury case who is called upon to testify about his or her observations of the plaintiff, and the treatment provided; and
(c) litigants (including the officers and employees of corporate litigants) who have expertise, and who were actually involved in the events underlying the litigation. [36] I conclude that the Board did not act unreasonably in admitting Dr. Davidson’s evidence. The reasons reveal that the Board came to its own conclusions, having heard the Applicant’s rationale, followed by OHIP’s decision as described by Dr. Davidson. Dr. Wilkin testified about his rationale for the applicable codes to the medical procedures he performed. Although the Board described Dr. Davidson as a participant expert, in ruling on the objection, the Board directed itself not to treat Dr. Davidson as a legal expert. It instead treated her as a witness with expertise as to the processing of claims and with knowledge of the orthopedic procedures and terms used in this case.
[37] I would also not give effect to the submission that opinion evidence was intertwined with the fact evidence because the summary of evidence shows that most of Dr. Davidson’s evidence was descriptive and factual. The final question was most clearly a question of opinion. The Board reasonably admitted it, having acknowledged the constraints on her evidence and the separation of its role from that of Dr. Davidson. . Cudney, #254 v St. Thomas Police Service
In Cudney, #254 v St. Thomas Police Service (Div Court, 2023) the Divisional Court stated the evidentiary status of hearsay in administrative proceedings:[23] First, the OCPC recognized that pursuant to section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, hearing officers have the discretion to admit hearsay evidence and that the weight given to hearsay evidence is also within their discretion and deserving of deference on appeal. . Scott v Ontario (Racing Commission)
In Scott v Ontario (Racing Commission) [2009] QL 2858 (Ont Div Ct), s.15 of the SPPA was applied to admit a pre-hearing admission against interest by the applicant, even though it was made to a person in authority, on the basis that the administrative proceeding invoked neither the common law criminal confession rule nor the applicant's s.7 Charter rights.
. Polifroni v. Ontario Racing Commission #2
In Polifroni v. Ontario Racing Commission #2 (Ont Div Ct, 2013) the court endorsed as reasonable a tribunal's fact-findings made entirely on circumstantial evidence.
. Berger v. Legal Aid Ontario
In Berger v. Legal Aid Ontario (Div Ct, 2021) the Divisional Court commented on credibility and the related need for an oral hearing:[64] Where a decision turns on credibility, a decision maker should not make an adverse finding of credibility without affording the affected person an oral hearing: Khan v. University of Ottawa (1977), 1997 CanLII 941 (ON CA), 34 O.R. (3d) 535, [1977] O.J. No. 2650 (C.A.), at paras. 21-22.
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