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Ontario Court Reviews Principles of Procedural Fairness

Shahin v. Intact Insurance Company 2024 ONSC 2024 

Reading Time: 4.5 minutes (approx.) 

By: Alexandre Doucet (Articled Clerk) 

This appeal stems from a motor vehicle accident which occurred in 2013. Ms. Shahin (the Appellant) claimed she had suffered a catastrophic impairment and sought accident benefits from her insurer, Intact Insurance Company (the Respondent). Her claim was denied, and she applied to the Tribunal seeking a determination that she met the conditions for catastrophic impairment. The Tribunal found she did not.  

Ms. Shahin appealed to the court, stating the Tribunal’s hearing was procedurally unfair in three ways: (1) the Tribunal relied on the evidence of the Respondent’s expert, Dr. West, who testified in chief at the hearing but was never cross-examined, a key element of the trial process; (2) the Tribunal considered the issue of causation despite the fact that the Respondent had conceded it was not an issue, and did not give the parties notice or the opportunity to make submissions on this subject; and (3) the Tribunal relied on documents that were not reference by either parties, to the Appellant’s detriment, without giving her the opportunity to address these documents. 

Procedural fairness refers to the justness of the process followed in reaching a decision – the goal being to ensure that an individual, in this case the Appellant, has the opportunity to be heard by an unbiased decision-maker and to be made aware of all evidence considered in the decision-making process. 

Regarding the Appellant’s first point, the Respondent argued that section 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, applied, which empowers tribunals to limit further examination and cross-examination where it is satisfied a sufficient disclosure of evidence is made relevant to the issues in the proceedings. The court noted that this only applies where cross-examination occurred; in this case, no cross-examination had occurred and so section 22 could not be relied upon. The court found that the Tribunal had breached its duty for procedural fairness. 

Regarding the Appellant’s second point, the court explained that both parties had stated in their opening statements that causation was not in issue, but the Tribunal addressed causation in reaching its decision without advising the parties it would do so or offering them the opportunity to make submission on the topic. Causation goes to the heart of the matter: if the accident did not cause any injury, then the Appellant has no opportunity to recover benefits. Without notice or an opportunity to make legal or factual submissions, the Appellant was not afforded the opportunity to properly present her case, and the court determined that procedural fairness had been breached. 

Regarding the Appellant’s third point, the court found that the Tribunal had relied on external evidence not referenced by either party to reach its decision. The Tribunal’s reliance on documents that neither party had entered into evidence caused it to make inferences about the Appellant’s credibility without ever allowing her to provide explanation or response. The court found this to be a breach of procedural fairness as it undermined the parties ability to complete full and fair examination of the evidence. 

After finding that the Tribunal had breached procedural fairness, as the Appellant alleged, the court returned the matter to the Tribunal for a new hearing before a different decision maker. 

Link: https://canlii.ca/t/k42z2  

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