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Administrative - Evidence - Cross-Examination. 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 considered a procedural fairness argument, where the insurer's medical expert was not available for cross-examination by the appellant:[3] Ms. Shahin submits the hearing was procedurally unfair in several ways. Her central submissions are as follows: First, the Tribunal unfairly relied on the evidence of Intact’s expert, Dr. West. Dr. West, a neuropsychologist, prepared a report in which he diagnosed Ms. Shahin with an adjustment disorder but did not find her to be catastrophically impaired. He testified in-chief at the hearing but when the time originally allocated for his cross-examination was used to hear a motion, he never re-attended to be cross-examined. Ms. Shahin submits the Tribunal unfairly failed to insist he attend for cross-examination and breached procedural fairness by relying on his evidence in its decision.
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Did the Tribunal breach procedural fairness by relying on the evidence of Intact’s expert when he was not cross-examined?
[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.
[10] Intact submits that the references to Dr. West’s evidence did not prejudice Ms. Shahin. It emphasizes that the Tribunal did not rely on Dr. West’s opinion regarding whether Ms. Shahin sustained a catastrophic impairment. Intact also submits that Ms. Shahin’s counsel strategically delayed cross-examining Dr. West by bringing a motion on the day that was allocated for Dr. West’s cross-examination.
[11] In my view, the Tribunal breached procedural fairness. Both parties rely on Baker, at paras. 23-27, for the factors to determine the level of procedural fairness owed in the circumstances of a particular case. In this case, those factors point to a high level of procedural fairness. This is most clearly evidenced by the nature of the hearing itself, which proceeded as a full, contested, oral hearing, with witnesses, including experts, examinations, and, apart from Dr. West, cross-examinations. The issues in the case were of substantial financial importance to Ms. Shahin.
[12] Once it became clear that Dr. West did not plan to re-attend for cross-examination and the Tribunal determined it would not order him to do so, it should have disregarded his evidence and struck his report from the record. ....
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[18] The Tribunal referred to Dr. West’s evidence both to support its conclusions that the accident did not cause Ms. Shahin any injury and that her impairment did not rise to the level of catastrophic. The Tribunal of course also relied on substantial other evidence in support of these conclusions. Still, Dr. West’s evidence infected the Tribunal’s conclusions on the central issues governing its decision. In these circumstances, the Tribunal’s reliance on the untested evidence of Dr. West breached procedural fairness. . Deokaran v. Law Society of Ontario
In Deokaran v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered the rule in Browne v Dunne, typically considered in a criminal context, here in an administrative context:[35] The Appeal Division also rejected this argument, explaining that the Appellant did have notice that her evidence was being impeached. The panel stated, at paras. 14-19:The rule in Browne v. Dunn stems from a scenario where the plaintiff’s witnesses were not given notice that their evidence would be impeached, and were not cross-examined in relation to their evidence. The impeaching evidence was introduced without notice to the plaintiff, after the plaintiff’s case was closed and there was no opportunity to respond to the impeaching evidence. That fact situation is completely different from what occurred at the hearing of this matter.
Here, the hearing was convened specifically to address the allegation that the appellant had failed to respond to the Society. The appellant was fully aware of that allegation – it was the only and core issue of the hearing.
The appellant was also aware of the fact that the Law Society would be tendering evidence from its investigator to support its case. At the hearing of August 24, 2018, the appellant introduced last-minute evidence (an affidavit sworn August 22, 2018) asserting that she had indeed responded. On August 23, the Law Society in turn filed last-minute rebuttal evidence to refute that assertion...
The record shows that the appellant did have notice that her credibility would be impeached. The Law Society had filed its rebuttal material prior to the hearing, and the appellant was aware of the material and had had an opportunity to review it, as we discuss below.
Also, at the hearing, the appellant was cross-examined on the truthfulness of her sworn affidavit. She was directly questioned about the fact that she said, in her August 22 affidavit, that she had responded to the Society on June 11, 2018. She was also questioned about why she had not mentioned this in an e‑mail to the investigator on June 18, 2018.
We find in these circumstances the rule in Browne v. Dunn was not violated. The rule in Browne v. Dunn is not applicable where it is “otherwise perfectly clear that [the person being impeached] has had full notice beforehand that there is an intention to impeach credibility of [the] story.” The Divisional Court has recently affirmed that parties who are well aware of the allegations made against them need not be cross-examined on those allegations [Ontario (College of Physicians and Surgeons of Ontario) v. Lee, 2019 ONSC 4294 (Div. Ct.), at para. 78]. [36] The Law Society proceeded first at the trial. The Appellant knew that the Law Society’s position was that it had no record of receiving the Appellant’s letter in its mail room on June 11, 2018, and that it would ask the Tribunal to draw an inference that the letter had not been delivered. The Appellant was specifically asked on cross-examination why, when she emailed the Law Society investigator on June 18, 2018 to inquire about her extension request, she made no reference to having personally delivered the material on June 11, 2018. She was unable to provide an explanation for this omission. This was an important basis for the Hearing Division’s rejection of her claim.
[37] I agree with the conclusions of the Hearing Division and the Appeal Division that there was no unfairness and in these circumstances the rule in Browne v. Dunn was not violated. . Schram v. Thompson
In Schram v. Thompson (Div Court, 2022) the Divisional Court emphasized the need for cross-examination of sworn evidence, particularly when the RTA required a sworn statement from the intended occupant that they require the premises [for 'personal possession' termination under s.72]:[34] The RTA, s. 183, provides that the Board must adopt the “most expeditious method of determining” a matter that gives all parties an opportunity to “know the issues and be heard on the matter.” Where evidence can affect the outcome of a decision involving a person’s housing, a tenant should be able to test that evidence by cross-examination: Manikam v Toronto Community Housing Corporation, 2019 ONSC 2083 at para 44. Implicit in this principle is that the evidence must be sworn evidence given orally or in an affidavit.
[35] In considering an unsworn, untested statement from the Landlord that her son had moved into the unit and in failing to give the Tenant the ability to cross-examine on that evidence, the Board did not give the Tenant a right to be fully heard. Further, the Landlord’s statement did not establish the date on which her son had begin to occupy the unit – a critical issue in light of the Board’s stay order made immediately following the Tenant’s eviction. The Board evidently missed this point: if the son began to occupy the unit after the Board’s stay order, then the son’s occupancy, itself, was arguably a breach of the Board’s stay order and an abuse of process.
[36] This breach of the requirements of procedural fairness is starker when s.72(1) of the RTA is considered. It provides:The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,
(a) a notice of termination given under section 48… unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use for a period of at least one year…. The Act is express that sworn evidence was required from the proposed occupant. Fairness required that sworn evidence be provided by the Landlord. The Board proceeded based on an unsworn statement from the Landlord and nothing from the occupant.
[37] In all the circumstances, we conclude that the Tenant was denied procedural fairness when the Board accepted and relied solely upon the Landlord’s unsworn statement to find that the Landlord’s son was occupying the unit. For this reason alone, the Board’s decision on remedy cannot stand.
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[43] On the basis of these facts, the Landlord abused the process of the Landlord Tenant Board to obtain the initial order terminating the tenancy. There is no evidence that the unit was occupied at the time the Board made its stay order on March 13, 2020 and it is likely that the landlord re-leased the unit to C.C. in 2020 in breach of the Board’s stay order.
[44] If a third-party tenant, without notice of these circumstances, was in possession of the unit today, the Tenant could not be restored to the unit without displacing that subsequent tenant. In such a case, issues could arise about the Board’s jurisdiction to oust the subsequent tenant in favour of the original tenant, and the test for exercising such jurisdiction, if it exists. They do not arise in this case. Where an alleged occupant is not a tenant, but is a family-member occupant, and the alleged occupation is either a ruse or a tactic to further a landlord’s abuse of the process of the LTB, the Board has jurisdiction pursuant to SPPA, s. 23(1) and RTA, s. 31(1)(f), to order that the tenant be restored to the unit. That is this case.
[45] The Tenant may be entitled to other remedial orders as a consequence of the Landlord’s abuse of process and the Tenant’s consequent dispossession from his home since March 2020 – a period of more than 2.5 years during which the Tenant says he has had to live in a shelter. We are not positioned to grant additional remedial orders on the record before us, nor does justice require that we do so because of the effect of ongoing delay. We remit this issue back to the Board.
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