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Fairness - Where Summons Disobeyed. 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.
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