Complimentary Issue Volume. 8 Issue. 17 – May 8, 2024

This week we examine a court ruling on several breaches of procedural fairness in a CAT matter where the LAT ruled against the Applicant. Ultimately the court agreed with the Applicant on all counts, ordering the matter being remitted to the Tribunal for a new hearing.

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Court Confirms Three Breaches of Procedural Fairness by Tribunal

Procedural Fairness Breached x 3 – The Applicant Shahin, in 21-006450 v Intact, appealed to the court as to whether she was accorded procedural fairness when the Tribunal found that she was not catastrophically impaired. The Tribunal had reasoned that both that the accident did not cause Shahin’s mental condition, and that in any event her condition did not meet the level of catastrophic impairment. She contended that the Tribunal had unfairly relied upon Intact’s expert neuropsychologist Dr. West, considered causation when that was not at issue, and relied upon documents that were not entered into evidence by either party. The court agreed with Shahin that the hearing violated her right to procedural fairness, and accordingly it was remitted to the Tribunal for a new hearing.

Not Available for Cross Examination

Shahin submitted that the Tribunal breached procedural fairness by not requiring Intact’s Dr. West to re-attend for cross examination. Dr. West had provided nearly 100 pages of untested oral evidence. The court ruled that “Once it became clear that Dr. West did not plan to re-attend for cross-examination and the Tribunal determined it would not order him to do so, it should have disregarded his evidence and struck his report from the record. The Tribunal instead concluded that…there was no reason to consider the testimony of Dr. West to determine the applicant’s entitlement to the treatment plans in dispute, or if the applicant should be determined to be catastrophically impaired.” However, it was clear that the Tribunal had gone on to rely on components of Dr. West’s evidence in its decision.

The Tribunal did reference the Statutory Powers Procedure Act, wherein a Tribunal was free to reasonably limit cross-examination, “This is not a situation where the Tribunal limited further cross-examination; there was no cross-examination of Dr. West whatsoever… (the Tribunal) did not provide reasons for its decision on this point, other than to say it would not rely on Dr. West’s conclusions on the central issues. It did not provide any explanation or justification for relying on other untested information in Dr. West’s evidence to Ms. Shahin’s detriment.” While the Tribunal had relied on substantial other evidence, “Dr. West’s evidence infected the Tribunal’s conclusions on the central issues governing its decision. In these circumstances, the Tribunal’s reliance on the untested evidence of Dr. West breached procedural fairness.”

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Causation Not at Issue

The court further agreed with Shahin that “the Tribunal breached procedural fairness by deciding she was not entitled to benefits in part because the accident did not cause her mental condition.” It was noted that in opening statements, both parties confirmed causation was not in dispute. At no time during the proceeding did Intact’s position change, providing no argument or cases regarding causation. The Tribunal “did not otherwise advise the parties that it was considering causation. Ms. Shahin therefore had no notice or opportunity to make legal or factual submissions addressing the issue.”

The court found that “Causation was a critical issue in the Tribunal’s analysis. If the accident did not cause any injury, Ms. Shahin had no opportunity to recover benefits. The Tribunal went on to find that Ms. Shahin’s condition also did not rise to the level of catastrophic impairment but the finding that there was no causation was the first important step in its analysis.

Documents Not Entered Into Evidence

Finally, the court agreed that the “Tribunal’s repeated reliance on documents neither party referred to also breached procedural fairness.” Both parties agreed that a number of documents relied upon by the Tribunal, while in their respective briefs, were never admitted into evidence.

This to be understood in context of the Tribunal having at the outset advised both parties that “any document not referred to by pinpoint reference during oral arguments will not be reviewed.” Despite this, the court found that “the Tribunal made negative findings about credibility and impeached Ms. Shahin’s testimony using excerpts from medical records she was never questioned on.”

While true that the Tribunal relied upon other evidence in concluding there was no CAT impairment, “is impossible to conclude the information she was not questioned on was of little significance. This information formed part of the Tribunal’s justification for its conclusion on Ms. Shahin’s level of impairment. It was an error to rely on this information, which was not in evidence, was not drawn to the parties’ attention, and which Ms. Shahin was not questioned on, in support of the Tribunal’s conclusion on this central issue.”

While Shahin had sought as remedy the court rendering a decision on the facts, “the issues in this case are heavily fact dependent. It would not be appropriate for the court to substitute its own conclusions on the issues before the Tribunal. Therefore, the matter is remitted to the Tribunal for a fresh hearing by a different adjudicator or panel of adjudicators”. Costs of $5,000 were awarded to Shahin.

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