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Insurance (Auto) - Fairness. Plante v. Economical Insurance Company
In Plante v. Economical Insurance Company (Ont Divisional Ct, 2024) the Ontario Court of Appeal considers procedural fairness, the LAT rules and it's expertise:[50] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 27, the Supreme Court of Canada determined that specialized tribunals are best placed to select among available procedural options for the ones that will balance the competing interests of expedition, cost-effectiveness, and full participation. As such, the LAT is guided by rules which are found in the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “LAT Rules”).
[51] The LAT Rules contain a number of sections which address procedural fairness, accommodation, motions, adjournments, and the effective and efficient resolution of disputes. These include:Rule 3.1 - the liberal interpretation and application of the LAT Rules, which may be waived, varied, or applied to facilitate a fair, open, and accessible process and to allow effective participation by all parties, whether represented or not; to ensure efficient, proportional, and timely resolution of the merits of the proceedings; and to ensure consistency with the governing legislation and regulations;
Rule 7 - accommodation of parties, representatives, and witnesses for Ontario Human Rights Code-related needs.
Rule 15 - motions, including the contents of a motion; the timing of a motion; serving and filing a motion; and when the motion may be heard by the LAT; and
Rule 16 - adjournments, including when and how they may be made and when oral requests may be made. [52] The Supreme Court established in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th), at para. 27 that procedural fairness is a question of law. The characteristics of procedural fairness are non-exhaustive and were identified by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 22-27 as follows:a. The nature of the decision being made, and the process followed in making it;
b. The nature of the statutory scheme and the terms of the statute pursuant to which that body operates;
c. The importance of the decision to the individual affected;
d. The legitimate expectations of the person challenging the decision; and
e. The choices of procedure made by the deciding body itself. [53] The rules of procedural fairness often referred to as the Baker factors reflected above are best summarized by L’Heureux Dubé J at paras. 21 and 22 of her reasons in Baker as follows:Underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [54] While it is well-recognized that a specialized tribunal like the LAT is in the best position to determine the most appropriate procedural options that take into account the various competing interests of cost effectiveness, the most expeditious means of dealing with the dispute, and the rights of the parties to full participation, it remains fundamental that the LAT adopt a procedure that is procedurally fair to all parties.
[55] Rule 3.1 of the LAT Rules provides for the liberal interpretation and application of those Rules. A liberal interpretation must however allow for the facilitation of a “fair, open and accessible process” that results in an “efficient, proportional and timely resolution” on the merits of the dispute.
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