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SPPA - Limiting Examination [s.23(2)]. Shahin v. Intact Insurance Company
In Shahin v. Intact Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the appellant applied for 'catastrophic impairment' accident benefits which were denied by the insurer.
Here the court considers a Statutory Powers Procedure Act (SPPA) provision limiting examinations and cross-examinations [SPPA s.23(2)]:[9] Ms. Shahin submits the Tribunal breached procedural fairness by not requiring Dr. West to re-attend for cross-examination. Dr. West had provided nearly 100 transcript pages of untested oral evidence. He initially re-attended but left when a motion brought by Ms. Shahin used the time allocated for his cross-examination. He did not respond when he was contacted to reattend. In Ms. Shahin’s submission, it is impossible to know that his unchallenged evidence did not influence the adjudicators. Further, in their reasons, the adjudicators cited the transcript of his evidence and relied on his report.
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[17] Contrary to Intact’s submission, s. 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 does not assist. It authorizes a tribunal to “reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.” This is not a situation where the Tribunal limited further cross-examination; there was no cross-examination of Dr. West whatsoever. In addition, little or no deference is owed to the Tribunal on its choice of procedure given that it did not provide reasons for its decision on this point, other than to say it would not rely on Dr. West’s conclusions on the central issues. It did not provide any explanation or justification for relying on other untested information in Dr. West’s evidence to Ms. Shahin’s detriment.
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