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Appeal-Judicial Review - Issue Raised by Judge Alone. 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 found procedural unfairness where the tribunal applied documentary evidence not considered by the parties in examination, an issue that the court characterized as one of documentary 'Browne v Dunn' status:Did the Tribunal breach procedural fairness by relying on documents neither party referred to and that Ms. Shahin was not given an opportunity to address?
[25] Ms. Shahin submits the Tribunal’s repeated reliance on documents neither party referred to also breached procedural fairness. I agree.
[26] The adjudicators had voluminous documents before them. At the outset of the hearing, they advised the parties that “any document not referred to by pinpoint reference during oral arguments will not be reviewed.”
[27] The Tribunal then relied in its decision on numerous documents neither party had referred to. The parties agree that, although found in their hearing briefs, these documents were never admitted into evidence.
[28] This violated procedural fairness. The Court of Appeal has described the rule in Browne v. Dunn[2] as preventing the “ambush” of a witness by not giving the witness an opportunity to state their position on later evidence that contradicts them on an essential matter: R. v. Verney, 1993 CanLII 14688 (Ont. C.A.), at p. 376; R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 75-86. Here, the Tribunal made negative findings about credibility and impeached Ms. Shahin’s testimony using excerpts from medical records she was never questioned on.
[29] For example, at para. 61 of their decision, when discussing Ms. Shahin’s level of impairment, the adjudicators noted that in her testimony, Ms. Shahin stated that she had lost interest in spousal intimate relations because of the car accident. The adjudicators disbelieved her on this point, relying on medical records indicating that she suffered from uterine issues. These records and her uterine issues, including any impact on intimacy, were not put to Ms. Shahin. She had no opportunity to provide an explanation or response.
[30] At para. 73 of their decision, the adjudicators concluded that Ms. Shahin had not suffered a “substantial inability to perform the essential tasks of her pre-accident employment.” It relied on a job site analysis that found she did not have an issue with these tasks. But the job site analysis was not in evidence. The reference to the job site analysis was found in a report by an occupational therapist. Ms. Shahin alleges the OT’s report summarized a 70-page report in two paragraphs. Neither party referred to nor relied on this summary.
[31] Intact submits this reliance was not prejudicial because Ms. Shahin was cross-examined on her inability to work. But the cross-examination focused on 2018, not the 2015 period relied on by the adjudicators.
[32] The Tribunal relied on other evidence as well to conclude Ms. Shahin’s impairment was not catastrophic. Its assessment was highly fact dependent. But it is impossible to conclude the information she was not questioned on was of little significance. This information formed part of the Tribunal’s justification for its conclusion on Ms. Shahin’s level of impairment. It was an error to rely on this information, which was not in evidence, was not drawn to the parties’ attention, and which Ms. Shahin was not questioned on, in support of the Tribunal’s conclusion on this central issue. . 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 found procedural unfairness where the tribunal applied an issue (causation) that was not argued:Did the Tribunal breach procedural fairness by deciding the causation issue without notice to the parties?
[19] I also agree with Ms. Shahin’s submission that the Tribunal breached procedural fairness by deciding she was not entitled to benefits in part because the accident did not cause her mental condition.
[20] In their opening statements, both parties took the position that causation was not in issue. Counsel for Ms. Shahin stated that the medical reports “confirmed that causation was not in dispute” and stated: “[T]his case is not about causation.”
[21] In its opening statement, Intact disputed Ms. Shahin’s level of impairment, but not causation. Counsel for Intact emphasized that the “crux of [the] matter” was the distinction between whether Ms. Shahin’s mental impairment was at a class 2 impairment (as opined by Dr. West) or a class 4 impairment (as opined by Dr. Waisman). Only the class 4 impairment would support a finding of catastrophic impairment. But counsel did not dispute that the accident caused Ms. Shahin physical and psychological injuries. She stated:While Intact acknowledges that Ms. Shahin did suffer from diagnosed physical and psychological injuries as a result of this car accident, you will hear that the reality is that she does not suffer from a mental, or behavioural impairment that renders her catastrophically impaired with respect to adaptation. [Emphasis added.] [22] Intact’s position on causation did not change through the course of the hearing. While counsel for Intact cross-examined Ms. Shahin on her pre-accident health, its reliance on this evidence in closing was for the purpose of impeaching Ms. Shahin’s credibility. It was not to contest that the accident caused Ms. Shahin any injury. The argument was found in the portion of the Intact closing submissions, under the heading “Ms. Shahin is not credible.” The sub-headings in that section read “Ms. Shahin minimized her pre-accident medical condition” and “Ms. Shahin significantly exaggerates her post-accident life and health.” Intact did not provide any argument or cases addressing causation.
[23] The Tribunal did not otherwise advise the parties that it was considering causation. Ms. Shahin therefore had no notice or opportunity to make legal or factual submissions addressing the issue.
[24] Causation was a critical issue in the Tribunal’s analysis. If the accident did not cause any injury, Ms. Shahin had no opportunity to recover benefits. The Tribunal went on to find that Ms. Shahin’s condition also did not rise to the level of catastrophic impairment but the finding that there was no causation was the first important step in its analysis. . 2198806 Ontario Inc. v. The Corporation of the City of Windsor
In 2198806 Ontario Inc. v. The Corporation of the City of Windsor (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against an appeal decision of the Assessment Review Board (ARB) which denied a challenge to a municipality's decision to not grant a property tax refund of the applicant's hotel property when it was shut down for construction to convert to residential rental use.
In these quotes the court comments on a tribunal's duty to advise parties of new issues that it is considering (although in this case any such duty was apparently met):Did the Board deny the Applicant procedural fairness when it interpreted the demolition provision without seeking submissions from the parties on its proposed interpretation?
[22] The Applicant submits the Board breached procedural fairness when it interpreted s. 357(1)(d)(ii) without seeking submissions from the parties on its new proposed interpretation.
[23] There was no breach of procedural fairness in the circumstances of this case. The Board has the authority to control its own process and is owed deference on procedural rulings: Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, at para. 231; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 27.
[24] The parties should have knowledge of the essential issues in dispute so they can meaningfully respond. But the right to be heard does not require a tribunal to provide the parties with a further opportunity to make legal submissions every time a legal argument arises in deliberations that was not mentioned by the parties: Girouard v. Canada (Attorney General), 2020 FCA 129, at paras. 97-98; IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, at para. 93.
[25] Here, the Member did ask the parties for additional submissions on the interpretation of s. 357(1)(d)(ii). At para. 53 of her reasons, the Member noted that, although the parties’ submissions were directed primarily at the quantum of relief, she was concerned about the issue of entitlement under s. 357(1)(d)(ii). She requested and received submissions on entitlement. She therefore proceeded in a procedurally fair manner. . Canada (Public Safety and Emergency Preparedness) v. Ewen
In Canada (Public Safety and Emergency Preparedness) v. Ewen (Fed CA, 2023) the Federal Court of Appeal considered an unusual appeal from interlocutory orders that granted an interim stay of an immigration removal in order to receive the written submissions on court-initiated Charter issues.
In these quotes, the court considers (and grants) a Crown appeal against a court's order to raise Charter issues on it's own - here in an immigration context:B. Did the Federal court err by failing to exercise its jurisdiction to determine the stay motion before it, and/or exceed its jurisdiction by raising a new Charter issue that was not raised by the parties?
[19] The Federal Court exceeded its jurisdiction by unilaterally raising a new Charter issue that did not stem from the issues as framed by the parties, and that was irrelevant to the underlying motion for a stay of removal or the application for leave for judicial review.
[20] Reading from the transcript, it is obvious that the Motion Judge put an issue to the parties that was of particular interest to him, and that he knew such issue would come as a surprise to the parties. Before the parties could even address the merits of the respondent’s motion for a stay, the Motion Judge stated:I have, I have one issue, and it’s an issue that, that I’ve been observing for some time and this, this appears to be an opportunity to raise it. And it will come as a bit of a surprise to both parties, but I’ll, I’ll go through it […].
(Transcript, Public Appeal Book, Tab 3, at pp. 18-19.) [21] The Motion Judge then proceeded to take the appellant’s counsel through both parties’ records, highlighting the usage of “he” and “him” in reference to the respondent, and contrasted that usage with the inconsistent use of “he/him” and “they/their” pronouns in the appellant’s written submissions. Not being satisfied by the appellant’s counsel’s oral response at the hearing that attempted to clarify its usage of “they/their” pronouns as gender-neutral terminology, and counsel’s apology for any confusion caused, the Motion Judge adjourned the hearing and ordered an interim stay until the Charter issue, that he had himself identified, could be argued in a separate hearing and be ultimately decided.
[22] This course of action was flawed. In R. v. Mian, 2014 SCC 54 [Mian], the Supreme Court provided some guidance as to when and how appellate courts should exercise their discretion to raise new issues. While recognizing that appellate courts have that discretion, the Supreme Court signalled that it should be used sparingly and “only in rare circumstances”. It further explained that a new issue should only be raised “when failing to do so would risk an injustice”, “whether there is a sufficient record on which to raise the issue”, and where it would not result in “procedural prejudice to any party” (at para. 41). In my view, these guiding principles, which derive from the dual role of courts to remain independent and impartial, and also to ensure that justice is done, apply by analogy with equal force to a reviewing court, especially in a summary procedure. In the case at bar, I find that the Motion Judge failed to properly exercise his discretion in raising a new issue.
[23] First, I fail to see how the failure to raise the section 15 Charter issue would have worked an injustice to the respondent, especially once the confusion was clarified at the hearing. I appreciate that the respondent is self-represented, but if he felt that his dignity was affected or imperiled by the use of gender-neutral pronouns, it was for him to raise it. His tentative answer at the hearing when prompted by the Court is far from convincing in this respect. Moreover, it is clear that counsel for the appellant was prejudiced by the Motion Judge’s unexpected line of reasoning to order an interim stay. Of course, the appellant was given the opportunity to address the Motion Judge’s concerns in writing at a later date, but that was done at the expense of being able to enforce a removal order and to have a timely decision of the Court on the motion for a stay of the Direction to report.
[24] Perhaps more importantly, there was no sufficient record on which to raise the Charter issue. This consideration is particularly important when a new issue raised relates to the Charter. By raising a claim of Charter infringement absent a sufficient evidentiary record, the Motion Judge exceeded his jurisdiction and overstepped his role as an independent and impartial judicial decision-maker. Contrary to the teachings of the Supreme Court, he could be seen as going “in search of a wrong to right” (Mian at para. 42).
[25] In several cases, this Court and the Supreme Court have cautioned that an administrative tribunal should not raise a new section 15 Charter issue on its own initiative: see, for example, Weatherley v. Canada (Attorney General), 2021 FCA 158 at para. 20. Similarly, in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, the Supreme Court was quite clear that it was an error for a court of appeal to decide an appeal on the basis of a section 15 Charter violation in the absence of any factual record (paras. 25-27).
[26] In the present case, the requisite elements to determine a Charter issue were absent:There was no statement of claim or notice of application alleging a Charter breach and pleading the required elements to which the appellant could respond;
There was no evidence before the Federal Court from the respondent respecting an alleged breach of his section 15 Charter rights;
The respondent did not raise the issue when the Federal Court asked if the parties had any preliminary issues, nor did he seek a declaration of a breach or a remedy under subsection 24(1) of the Charter; and
There was no opportunity to file evidence or to cross-examine. [27] From the very early cases dealing with Charter issues, the Supreme Court has made it crystal clear that courts must not resolve them in a factual vacuum. As the Court stated in Mackay v. Manitoba, [1989] 2 S.C.R. 357, 1989 CanLII 26 (S.C.C.) at p. 361 [Mackay], “[t]o attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions”. See also: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 1986 CanLII 12 (S.C.C.) at pp. 762, 767-768; Konesavarathan v. University of Guelph Radio, 2020 FCA 148 at para. 12; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262 at para. 67. It is for a claimant to demonstrate, through evidence, that there is a nexus between government action and an alleged section 15 infringement.
[28] An urgent motion for a stay is obviously not the appropriate procedure to assess a new Charter claim, especially when the issue has not been raised by the parties in the underlying application for judicial review. These motions, by their very nature, are dealt with expeditiously and on the basis of a stripped-down record, and many of the procedural rights required for a Charter issue to be properly litigated and adjudicated are lacking. Further submissions, as ordered by the Motion Judge, will not cure these shortcomings. Moreover, a decision of the Federal Court on the Charter issue could be immune from appellate review as a result of section 72 of IRPA and the requirement of there being a certified question. Finally, I would add that subsection 18.2 of the Federal Courts Act does not authorize the granting of interim declarations in the context of an interim stay for relief, because declarations are final: see Francis v. Mohawk Council of Akwesasne, 1993 CarswellNat 423, [1993] F.C.J. No. 369 (F.C.) at para. 2; Peter Hogg, Wade Wright, and Patrick Monahan, Liability of the Crown, 4th ed. (Toronto: Thomson Reuters Canada, 2011) at p. 39.
[29] For all of the above reasons, I am of the view that the Order is fundamentally flawed and should be quashed.
[30] At the hearing and in his oral submissions, the respondent argued that the Federal Court properly exercised its jurisdiction in issuing the Order and the interim stay because in so doing, it was managing its proceedings to ensure that he was treated fairly and equally. The respondent is correct to point out that judges are advised to ensure equality in its proceedings, as well as to ensure that self-represented litigants are treated fairly: see Ethical Principles for Judges (Ottawa: The Canadian Judicial Council, 2021) at p. 35, para. 4.B.3 and p. 41, para. 5.A.8. For a recent application of these principles, see: Haynes v. Canada (Attorney General), 2023 FCA 158.
[31] While judges must strive to ensure that self-represented litigants receive the same level of procedurally fair justice as that accorded to other Canadians, these principles are not a licence to circumvent the scope of the Federal Courts Act. Furthermore, the advisory principles relate to procedural accommodations, and are not meant to authorize the judge to stray from their role as a neutral arbiter between the parties, and even much less to advocate on behalf of a party or to pursue their own line of inquiry. There is a line to be drawn between ensuring a procedurally fair process free from discrimination or other abusive behaviour, and raising a new substantive question (be it in relation to Charter rights) that is absent from the parties’ submissions and does not stem from the issues as framed by the parties. . 2541005 Ontario Ltd. v. Oro-Medonte (Township)
In 2541005 Ontario Ltd. v. Oro-Medonte (Township) (Div Court, 2023) the Divisional Court considered a motion for statutory leave to appeal, here brought under the s.24(1) of the Ontario Land Tribunal Act, 2021 against a 'review decision' of the Ontario Land Tribunal (OLT) (the 'review decision' was only to procedurally require a review (para 16), not the substantive review result).
In these quotes the court endorses the principle that the court's 'unpled law' doctrine (ie. that unpled law cannot be relied upon by the judge) does not apply in the administrative context:[71] Having said that, even if the Chair raised his own ground of review, the reality is that the Chair has the discretion to do so.
[72] To argue to the contrary, the Moving Party referred this Court to a few cases.
[73] In Mattamy (Downsview) Limited v KSV Restructuring Inc. (Urbancorp), 2023 ONSC 3013, the Applicant sought to set aside an arbitration award on the basis that the arbitrator exceeded his jurisdiction by raising and deciding a new issue and on grounds of unfairness arising from his refusal to permit the Applicant from presenting evidence that it considered relevant to the new issue. The Court found that the arbitrator did not exceed his jurisdiction by having raised and considered the new issue. However, in considering whether the manner in which the evidence and submissions about the new issues were received and considered, the court held that the Applicant was not afforded a sufficient opportunity to present its case on the new issue in that the arbitrator refused to allow certain pieces of evidence to be received. The Court ordered that the award be set aside and the parties proceed to a new arbitration before a different arbitrator. These circumstances are not analogous to the case at bar.
[74] In Rabin v. 2490918 Ontario Inc., 2023 ONCA 49, the appeal involved the application of s. 23(2) of the Commercial Tenancies Act, and, more particularly, the determination of whether a landlord refused or neglected to consent to an assignment of a commercial lease, whether the tenant waived the landlord’s defective performance, and whether the landlord’s consent was unreasonably withheld. The appellant tenant appealed the dismissal of his application for an order under s. 23(2) under the CTA to require the respondent landlord to consent to the assignment of the lease. In sum, he submitted that the application judge erred in finding that the appellant had waived the respondent’s neglect or refusal to provide its consent within the 15-day deadline set out in the lease or at all, and in failing to find that the respondent had unreasonably withheld its consent to the requested assignment. The Court held that the application judge applied the doctrine of waiver when it was not raised or argued by the parties, and erred in his application of the doctrine of waiver. The court stated:[24] It is well established that as a matter of natural justice and trial fairness, it is not open to a judge to dispose of a material issue in a proceeding on a basis that has not been raised or argued by the parties: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, at para. 62, leave to appeal refused, [2016] S.C.C.A. No. 279; Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at para. 6; Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 58-62.
[25] Here, on his own initiative, the application judge relied on the doctrine of waiver to dispose of the material issue of the respondent’s compliance with article 11.1(a) of the lease without giving the parties the opportunity to make appropriate submissions. This alone warrants the setting aside of the application judge’s decision. This is in the context of a court hearing an application, which is a very different situation from that of a request for review being considered within the administrative context.
[75] It is the view of this court that, even if the Chair pulled this ground out of thin air, which he did not, the reality is that the Chair has the discretion to raise its own ground of review. The Courts have recognized that the Chair of an administrative tribunal is entitled to arrive at a conclusion on an issue in the absence of submissions from counsel given its institutional expertise. See Gowling v. Ontario (Workplace Safety & Insurance Appeals Tribunal), 2004 CarswellOnt 9827 (Div. Ct.) at para. 21-22. See also, sections 9(1) and 9(4) of the OLTA; Rule 1.3 and 1.4 of the Tribunal Rules. . Toussaint v. Canada (Attorney General)
In Toussaint v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal held that it was appropriate for the court to declare that it had jurisdiction to hear the case, even though that wasn't sought by the moving party:The motion judge did not err in concluding the Ontario court has jurisdiction
[17] The motion judge rejected the appellant’s argument that the action was in essence a matter of judicial review within the exclusive jurisdiction of the Federal Court. He noted, first, that the Ontario court has concurrent jurisdiction with the Federal Court with respect to Charter claims against the federal government; and second, that the Minister’s decision on whether to implement a recommendation of the UNHRC was an exercise of a Crown prerogative, and thus was outside the exclusive jurisdiction of the Federal Court.
[18] The appellant argues that the motion judge was asked only to dismiss the claim under r. 21.01(3)(a) of the Rules of Civil Procedure but went further by ruling that the action was within the jurisdiction of the Ontario court. We do not agree.
[19] Jurisdiction is an either/or concept: the decision not to dismiss the claim on the basis that it was beyond the jurisdiction of the Ontario court necessarily means that it is within the jurisdiction of the Ontario court. The order allows the action to proceed in the Superior Court of Justice in Ontario, and consequently the appellant is precluded from continuing to dispute the Ontario court’s jurisdiction over the subject matter of the action: see Skof v. Bordeleau, 2020 ONCA 729, 456 D.L.R. (4th) 236, at para. 8, leave to appeal refused, [2021] S.C.C.A. No. 17. It is well settled that this is a final order: see e.g., Hopkins v. Kay, 2014 ONCA 514, at para. 12.
[20] It cannot be said that the motion judge’s order was made unfairly because it granted relief that the parties did not request. If the appellant did not contemplate this result, it should have. The appellant offers no basis to conclude that the motion judge’s decision is erroneous as a matter of law and we see none. Accordingly, this ground of appeal must be rejected. . Rabin v. 2490918 Ontario Inc.
In Rabin v. 2490918 Ontario Inc. (Ont CA, 2023) the Court of Appeal affirmed that a court may not apply a legal issue without the parties having the oppourtunity to be heard on it:[24] It is well established that as a matter of natural justice and trial fairness, it is not open to a judge to dispose of a material issue in a proceeding on a basis that has not been raised or argued by the parties: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, at para. 62, leave to appeal refused, [2016] S.C.C.A. No. 279; Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at para. 6; Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 58-62.
[25] Here, on his own initiative, the application judge relied on the doctrine of waiver to dispose of the material issue of the respondent’s compliance with article 11.1(a) of the lease without giving the parties the opportunity to make appropriate submissions. This alone warrants the setting aside of the application judge’s decision. . R. v. Tran
In R. v. Tran (Ont CA, 2023) the Court of Appeal allowed a criminal appeal where the trial judge found for the Crown on an issue that the court raised solely by itself:[39] The appellant was entitled to a fair assessment of his evidence in the context of the evidence as a whole, untainted by the procedural unfairness of the trial judge rejecting the credibility of defence evidence on a basis not raised by Crown counsel either in cross-examination of defence witnesses or in submissions, or by the material misapprehension of evidence on issues essential to the trial judge’s reasoning: R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 15; R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-38; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at paras. 37-38. The procedural unfairness and misapprehension of evidence in this case related to a central aspect of the trial judge’s assessment of the credibility of the defence evidence. I am not satisfied that this is an appropriate case to apply the proviso.
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