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Evidence - Summons. Vivekanantham v. Certas Direct Insurance Company
In Vivekanantham v. Certas Direct Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the issues were "a special award under s. 10 of Regulation 664 [SS: "Reg 664/90 Automobile Insurance, s.10 Dispute Resolution (Section 280 of the Act)"] and that the LAT breached procedural fairness when it admitted and relied on the report of Dr. Sivasubramanian in spite of the fact that he refused to attend the hearing and be cross-examined".
The court considers a procedural fairness issue, here where the tribunal accepted medical expert evidence in the form of a written report, but where the summonsed psychiatrist witness refused to testify [ie. para 8: "Dr. Sivasubramanian was served with a summons to attend the hearing, which he acknowledged receiving. However, he refused to attend the hearing to give evidence."]:[62] In Shahin v. Intact Insurance Company, 2024 ONSC 2059, the central issue before the Divisional Court was whether Ms. Shahin was denied procedural fairness by the LAT when it relied on the report of Intact’s expert who had testified in chief at her accident benefits hearing, but never attended to be cross-examined. Intact made submissions similar to the ones that Certas has made before this court, namely, that the LAT did not really rely on the expert’s opinion to support its conclusions.
[63] The Divisional Court rejected this submission and found that while there was other substantial evidence to support its conclusions, the expert’s evidence “infected the Tribunal’s conclusions on the central issues governing its decision”: Shahin, at para. 18. Further, once it became clear that the expert would not attend for cross-examination and the LAT determined it would not order him to do so, it should have “struck his report from the record”: Ibid., at para. 120.
[64] I agree with the reasoning and conclusion in Shahin. Once it was clear that Dr. Sivasubramanian was not going to appear at the hearing to be cross-examined, the LAT should have refused to admit his report. The LAT promised to take steps to mitigate the unfairness occasioned by admitting his report, but then did not do so.
[65] The LAT relied on Dr. Sivasubramanian’s report. This is clear from the following statement in para. 21: “I agree with the finding of the respondent’s assessor that in the sphere of ADL [Activities of Daily Living], the applicant suffers from a Class 3, moderate impairment.”
[66] I also reject Certas’ submission that LAT’s reliance on Dr. Sivasubramanian’s report with respect to the Activities of daily living sphere did not matter since the LAT made a determination regarding the social functioning sphere without referring to his report. In my view, like in Shahin, Dr. Sivasubramanian’s report “infected’ the LAT’s reasoning and conclusions regarding all aspects of the issue of whether the Appellant was catastrophically impaired.
[67] For these reasons, I find that the LAT’s decisions must be set aside on the basis of a denial of procedural fairness. . Rockcliffe Park Residents Association v. City of Ottawa
In Rockcliffe Park Residents Association v. City of Ottawa (Div Court, 2024) the Divisional Court considers the propriety of a summons [under R39.03(5)], particularly the extent of documents required to be brought with the witness:Issue Five: Should the Subpoena Duces Tecum be struck or narrowed in scope?
[81] The Notice of Examination for Mr. Juarez includes a requirement that Mr. Juarez bring the following documents and things to the examination:(i) A complete copy of the Application Record;
(ii) All correspondence including, but not limited to, emails, texts, or other electronic messages exchanged between the City of Ottawa and the Intervenor, Linebox, or any representative of the Intervenor, in relation to 480 Cloverdale Road, in the possession of the City of Ottawa, subject to privilege.
(iii) Any notes taken by City of Ottawa staff during or after meetings/consultations between City staff and Mr. Wang/his representatives regarding the various applications for a Heritage Permit for 480 Cloverdale Rd. from November 2021 (date of the First Application that was deferred by the BHC on the consent of the owners of the Subject Property due to a violation of inter alia, mass limits) to the date that City Council approved the impugned Third Application for a Heritage Permit.
(iv) All documentation (including but not limited to emails, text messages, notes, letters), if any, provided to the City of Ottawa staff by the Intervenor (or anyone representing the Intervenor, such as his architect) with respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..
(v) All other documents including, but not limited to, reports, notes, drafts (including comments on drafts), photographs, charts, plans, surveys, calculations, and information recorded or stored on any device in the possession, control, or power, of the City of Ottawa which relate to 480 Cloverdale Road.
(vi) All internal correspondence between City Staff concerning the consideration of the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd., including but not limited to the City of Ottawa staff’s consideration of the mass and/or height of the proposed build, the RPRA’s requests for legible materials, the RPRA’s submissions on mass, and the Owner/Intervenor’s dismissal of his appeal to the Ontario Land Tribunal, subject to privilege.
(vii) Any documentation (including notes) of any opinions solicited by the City staff, either internally or externally, concerning the mass with respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd.
(viii) Any documentation (including notes) of any advice provided by City of Ottawa staff to the Intervenor (or anyone representing the Intervenor, such as his architect), in between the date of his First Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd. and the date that the Third Application for a Heritage Permit was finally approved by City Council.
(ix) Any more recent versions of the Annotated Rockcliffe Park Heritage Conservation District Plan (Annotated Plan), if any exist, than the one provided.
(x) Any correspondence to the City Staff re: the dissemination and/or intended use of the Annotated Plan or concerning the application of the Annotated Plan.
(xi) All City of Ottawa staff reports to the Built Heritage Sub-Committee, from 2016 - to present, regarding properties designated under Part V of the Ontario Heritage Act and located in the Rockcliffe Park Heritage Conservation District.
(xii) A list of all documents over which the City of Ottawa claims privilege and the nature of the privilege asserted. [82] The Applicant states that the request for the above-noted documents is based on a proper evidentiary record provided by the affidavits they have submitted on this motion. The Applicant states that the marked departure of the Decisions in issue in the present judicial review application from Council’s past decisions on the applications for a heritage permit for 480 Cloverdale Road raises a reasonable inference that the City’s records will reveal that the City considered irrelevant factors regarding the approval of the second application. The Applicant also argues that it is reasonable to assume that past City Staff Reports to the BHC from 2016 to present will demonstrate a consistent practice with regard to mass and height consistency.
[83] The City objects to the breadth of the request for document production arguing that it is a fishing expedition and therefore, an abuse of process.
[84] Where a request for documents to be produced at an examination is overly broad, the court can infer that “fishing” is the purpose behind the summons.[29] [Coburn v. Barber et al., 2010 ONSC 3342, at para 101]
[85] In my view, the request for documents set out above is overly broad. It amounts to a general discovery of the City and would be an abuse of process. I will permit the Applicant to ask Mr. Juarez to produce documents that clearly relate to the permissible issues for examination that I have set out above under Issue 4: What is the Appropriate Scope of the Examination? The relevance of the document to the issue must be readily apparent and not remote. The Applicant will not be permitted to request documents that do not clearly relate to the issues set out above under Issue 4.
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