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Fairness - Limiting Hearing Time. Jones-Whyte v. Intact Insurance Company
In Jones-Whyte v. Intact Insurance Company (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a joint appeal-JR, this brought against a LAT finding "that the appellant had failed to establish catastrophic impairment under Criterion 8 of the Statutory Accident Benefits Schedule (SABS)".
The court considered 'procrustes' procedural fairness issues, here time limits on hearing and witness examination:[5] Beginning with procedural fairness, there is no issue that the LAT has the authority to control its process and that its procedural choices are relevant to the determination of whether the process was fair: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. s. 25.0.1; Licence Appeal Tribunal Rules, r. 3.2; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para. 27.
[6] As this Court has said in another decision regarding the LAT: “Tribunals are owed considerable deference on their procedural decisions. This is because administrative tribunals have the experience and expertise to balance handling the need to ensure fair participation for all parties with the prompt determination of proceedings on their merits”: Jendrika v. Intact Insurance Company, 2025 ONSC 652 (Div. Ct.), at paras. 26-27.
[7] In this matter, there was a LAT case conference in May 2024 regarding the hearing. The issues were identified, witness lists were discussed, and a schedule was set for the exchange of documents and other materials. A five-day hearing was set for the hearing based on that information. As noted in the Case Conference report and order, the parties were encouraged to agree on a timetable for an efficient hearing, while noting that the timetable for testimony was subject to the hearing adjudicator’s discretion.
[8] At the outset of the hearing in October 2024, most of the issues were withdrawn and the appellant’s counsel indicated that he would be calling fewer witnesses because some of them were redundant. The parties put forward an agreed timetable for the remaining witnesses.
[9] After discussion, the Adjudicator reduced the time requested for the appellant’s examination in chief from 5 hours to 1½ hours, with 1½ hours for cross-examination and ¼ hour for redirect examination. The Adjudicator also set the time for the appellant’s sister’s evidence (totaling 2¼ hours) and set time limits for the expert witnesses for both sides. During the hearing, the Adjudicator also increased the time allocated to experts for their testimony.
[10] The transcript shows that when setting the time limits for the witnesses at the outset of the hearing, the Adjudicator had regard for the case conference directions, the length of time set for the hearing, the reduction of the matters at issue, the nature of the remaining issues, the reduction in the witness list, her view of the length of time that was needed for each witness, and the submissions of counsel for the parties. For the experts, the Adjudicator also took into account the agreement that the lengthy expert reports were being admitted as evidence. The Adjudicator was entitled to apply her expertise regarding what time should be needed and did so.
[11] The Adjudicator did apply the time limits very precisely as the examinations progressed, but the hearing transcript of the appellants’ evidence does not show an unfairness in doing so. Further, the Adjudicator’s extension of time for the experts shows that she was reflecting on the time limits as the evidence unfolded. This case is unlike Plante v. Economical Insurance Company, 2024 ONSC 7171 (Div. Ct.), where the hearing was drastically reduced from 20 days to 5 without any change in the nature of the case, and the applicant in that case was unable to call several of her witnesses. In contrast, the Adjudicator here heard from everyone and extended the time for certain witnesses. Further, the initial hearing length of five days was set when there were several more issues and witnesses. We conclude that the time limits were not procedurally unfair.
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