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Administrative - Summons. Nuroh v TD General Insurance Co.
In Nuroh v TD General Insurance Co. (Ont Div Ct, 2025) the Ontario Divisional Court allowed a LAT SABS joint appeal/JR, this brought against a LAT finding that the appellant/applicant was "not catastrophically impaired".
This case involves the practice of tribunals controlling summons issuance:[4] ... , Ms. Nuroh submits that the Tribunal breached procedural fairness in failing to grant Ms. Nuroh’s request to issue a summons to TD’s adjuster, Marina Leahy, so that she could be examined on the issue of a special award. The Tribunal based its refusal to issue the summonses on the LAT’s Rules not having been complied with.
[5] Neither Ms. Nuroh nor TD had the authority to compel a witness to attend the hearing. The Tribunal was the only one with the authority and discretion to issue a summons. It was incumbent on the Tribunal to use its discretion to facilitate the cross-examination of a key witness whose expert reports on the critical issue in the application were being admitted into evidence. The LAT as a quasi-judicial tribunal is required to adhere to principles of natural justice and procedural fairness. Courts will accord deference to a tribunal’s procedural choices given the tribunal’s authority to control its own process, so long as the requirements of procedural fairness are met. No deference is accorded to a decision that fails to accord with the principles of natural justice and procedural fairness.
[6] I agree with Ms. Nuroh that the hearing violated her right to procedural fairness. These reasons explain why Ms. Nuroh was not afforded a fair hearing and why this matter must be remitted to the LAT for a new hearing.
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[12] On February 23, 2024, the parties attended a case conference before Adjudicator Nick Iannazzo who set the matter down for an eight-day video hearing from October 7 to 11 and October 15 to 17, 2024. The Case Conference Report and Order (“CCRO”) dated March 6, 2024 allowed Ms. Nuroh to call up to ten witnesses. TD was allowed to call up to six witnesses, two of whom were unnamed but were described as “Expert re CAT (to be determined) and Expert re Criterion #8 (to be determined).
[13] The CCRO required the parties to exchange an updated list of proposed witnesses they intended to call at least 45 days before the hearing pursuant to r. 9.4.2 (b) of the LAT Rules, making August 23, 2024 the deadline. By email on August 23, TD’s counsel advised Ms. Nuroh’s counsel that they intended to call six witnesses at the hearing, including TD’s psychiatric assessor expert, Dr. Hasan. Ms. Nuroh’s counsel delivered an updated list naming ten witnesses. On the same day, TD requested the Tribunal to issue a summons for Dr. Hasan, among others. TD’s request for a summons for Dr. Hasan was refused by Vice Chair Todd for reasons dated September 3 and released on September 4, 2024 (the “Motion Order”). Notwithstanding that the timeline for requests to summons witnesses was met, the request was refused on the basis that Dr. Hasan was not identified by name in the CCRO.
[14] Following receipt of the Motion Order refusing the summons for Dr. Hasan, TD advised Ms. Nuroh’s counsel and the Tribunal by email on September 9, 2024 that they would be calling three witnesses. This updated witness list did not include Dr. Hasan. However, TD was aware that Ms. Nuroh’s counsel wanted to cross-examine Dr. Hassan and it made efforts thereafter to arrange for him to be available at the hearing for cross-examination without a summons.
[15] Ms. Nuroh’s counsel submits that notwithstanding TD’s updated witness list, they relied on discussions with TD about Dr. Hasan being made available at the hearing and that by the time they learned that this was not going to happen, the ten-day period for serving a summons under the LAT Rules had expired. An email that TD sent Ms. Nuroh’s counsel on October 2, 2024 advised that TD had not been able to get Dr. Hasan’s agreement to participate in the hearing as he was fully booked and travelling abroad. Ms. Nuroh’s counsel filed a motion two days later on October 4, 2024 returnable at the outset of the hearing on October 7, 2024 for a summons to be issued to Dr. Hasan and also to TD’s adjuster, Marina Leahy.
[16] Ms. Nuroh sought a special award pursuant to s. 10 of Automobile Insurance, R.R.O. 1990, Reg. 664 made pursuant to the Insurance Act. That section gives the LAT discretion to make an award in addition to the benefits and interest to which an insured is entitled to where the LAT finds that an insurer has “unreasonably withheld or delayed payments.” According to Ms. Nuroh, TD had unreasonably delayed making payments to her for income replacement benefits.
[17] To prove the claim for special damages, Ms. Nuroh made a timely request for a summons from the Tribunal for TD’s adjuster, Marina Leahy on September 23, 2024. When no response was received from the LAT, the office of Ms. Nuroh’s counsel followed up on October 1, 2024 and was advised that the request was incomplete (hearing format not selected). The LAT asked that a completed form be resubmitted which it was that same day. This request was denied on the basis that r. 8 of the LAT Rules requires a party to serve an approved summons on a summonsed person no later than ten days before the hearing.
[18] The Adjudicator denied both of Ms. Nuroh’s summons requests for Dr. Hasan and Ms. Leahy requested at the commencement of the hearing on the basis that they did not comply with r. 8.2.
[19] Ms. Nuroh sought reconsideration of, among other things, the procedural unfairness caused by the refusal of her request for a summons for Dr. Hasan and Marina Leahy. The Adjudicator held on Reconsideration that Ms. Nuroh should have moved earlier to secure Dr. Hasan’s attendance at the hearing and as there was no reasonable expectation that Dr. Hasan would be available for cross-examination at the hearing, TD was entitled to file his reports. In turn, the Adjudicator largely relied upon the reports to find that Ms. Nuroh was not catastrophically impaired.
[20] With respect to Ms. Leahy, in addition to refusing the request to summons her due to the non-compliance with r. 8.2 and because this was a second request, the Adjudicator found that Ms. Nuroh had the adjuster’s log notes and he was not satisfied that oral evidence would add evidentiary value.
[21] The LAT Rules dealing with issuing a summons, filing a request for a summons and failure to comply with the rules provide:3.1 LIBERAL INTERPRETATION
These Rules will be liberally interpreted to:
a. Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative;
b. Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal; and
c. Ensure consistency with governing legislation and regulations.
3.2 TRIBUNAL POWERS
The Tribunal may vary or waive the application of any Rule or procedure, on its own initiative or at the request of a party, except where to do so is prohibited by legislation.
The Tribunal may make such orders or give such directions in proceedings before it to control its process or to prevent abuse of its process.
The Tribunal may issue Practice Directions or similar types of documents to provide further information about the Tribunal's practices or procedures.
....
8. SUMMONS
8.1 ISSUING A SUMMONS
The Tribunal may issue a summons, on its own initiative or at the request of a party, requiring any person as defined in the SPPA, or a party:
a. to give evidence at an electronic or in-person hearing; and/or
b. to produce documents and things specified by the Tribunal at an electronic or in-person hearing.
The Tribunal will only issue a summons for witnesses, documents or things that are relevant to the issues in dispute and admissible at a hearing.
8.2 FILING OF A REQUEST FOR SUMMONS
A request for summons must be filed with the Tribunal using the form provided on the Tribunal's website. The requesting party must demonstrate the relevance of the request to the issues in dispute.
Unless otherwise ordered by the Tribunal, the approved summons must be served on the person summoned no later than 10 days before the hearing. The requesting party must file their request in a timely manner so that the Tribunal can adjudicate and issue the summons in advance of the deadline for service.
The requesting party must serve a copy of the approved summons on the other parties when it is served on the person summoned.
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9.3 FAILURE TO COMPLY WITH THE RULES
If a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal.
If a party fails to comply with any Rule, direction or order with respect to the exchange or production of witness lists, the party may not call a witness who is not included on a witness list filed in compliance with the Rules, direction or order to give evidence without the permission of the Tribunal.
Parties will have an opportunity to make submissions before the Tribunal determines:
a. if the documents or things can be used at the hearing;
b. if the witness(es) may testify at the hearing; and/or
c. whether any other order is required.
When making its determination, the Tribunal may consider any relevant factor, including:
a. the reasons for non-compliance;
b. whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;
c. the extent to which the substance of the information or testimony lies within the knowledge of the other party;
d. whether the other party opposes the admission of the evidence or testimony; and
e. the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.
9.4.2 DEADLINE FOR DOCUMENT EXCHANGE (AABS)
If an earlier exchange date has not been ordered by the Tribunal, then by no later than 45 calendar days before the hearing, the parties must exchange:
a. all documents and things the parties intend to rely on as evidence at the hearing; and
b. for electronic and in-person hearings, a list of witnesses each party intends to call to give evidence at the hearing, with a summary of the evidence each witness will give at the hearing. ....
[33] Under r. 8.2 of the LAT Rules, the LAT has discretion to allow a witness to be called where the requirements of the rule have not been met. It is clear from the transcript of the submissions made on the motion for a summons for Dr. Hasan and Ms. Leahy at the opening of the hearing that the Adjudicator was asked to exercise his discretion to grant the summons. The Adjudicator was asked to issue the summons on the basis that Ms. Nuroh’s counsel would endeavor to serve Dr. Hasan and would reserve his submissions on whether Dr. Hasan’s report should be excluded in the event he was unsuccessful in serving him.
[34] The Adjudicator relies in the Reconsideration Decision as a basis for refusing the summons on the fact that by the time of the October 7, 2024 motion, TD had dropped Dr. Hasan from its witness list (after its request to summons him was rejected) and also that Dr. Hasan did not appear on Ms. Nuroh’s witness list. However, in exercising his discretion as to whether to issue the summons, notwithstanding there had not been compliance with the LAT Rules, the Adjudicator should have considered the prejudice to Ms. Nuroh in not being able to cross-examine Dr. Hasan, a pivotal witness. The Adjudicator should also have considered that issuing the requested summons could have mitigated or cured the prejudice and provided a fair hearing.
[35] While the LAT may have its own procedural rules that allow for the most expeditious and cost-effective hearing of a dispute, those rules do not allow for an unfair process by which an expert’s opinion on a critical issue can become unchallenged evidence.
[36] The LAT Rules are to be liberally interpreted (r. 3.1) and the LAT has the power to vary or waive the application of any rule or procedure on its own initiative or at the request of a party except where to do so is prohibited by legislation (r. 3.2). The LAT Rules should not be applied so strictly that they effectively preclude a party from having a fair hearing.
[37] The Adjudicator found that the author of a report is not automatically considered a witness available for cross-examination at a hearing. Clearly there are reports which are non-contentious or self-evident that can be admitted into evidence without cross-examination. However, in this case, TD’s expert, the psychiatrist, Dr. Hasan, was a central witness on the most important contested issue of catastrophic impairment and Criterion 8. Dr. Hasan’s testimony was highly relevant. Clearly Ms. Nuroh would be prejudiced by not being able to cross-examine the author of three expert reports which found her not to be catastrophically impaired and which critiqued her own expert’s report. Dr. Hasan would not be taken by surprise because he was clearly aware that his presence was sought for the hearing and as noted, had had more than ten days notice of that. Moreover, the motion was made on October 7, 2024. The hearing had been scheduled to continue until October 17, 2024 which would appear to have been plenty of time to serve Dr. Hasan and arrange for his cross-examination at a virtual hearing. None of these factors (which are cited as relevant factors under the LAT Rules) were considered by the Adjudicator in his decision to refuse the summons on the basis of the strict requirement of ten days’ notice in r. 8.2.
[38] The Adjudicator in the Reconsideration Decision distinguished the authorities Ms. Nuroh relied on in support of it being a breach of procedural fairness to admit a report into evidence that had not been tested by cross-examination (Shahin v Intact Insurance Co. 2024 ONSC 22059; Vivekanantham v Certas Direct Insurance Co., 2024 ONSC 6198 and Plante v Economical Insurance Co., 2024 ONSC 7171). The Adjudicator drew a distinction between a witness giving evidence in chief or being summonsed and then failing to attend for cross-examination, compared to Dr. Hasan who had not given evidence in chief or been summonsed. Whether Dr. Hasan’s reports were admitted into evidence with or without his testifying in chief, the trial unfairness arises from the Tribunal’s overreliance on technical rules and from a failure to focus on the requirements for a fair hearing by using its discretion to facilitate the cross-examination of a key witness whose expert reports on the critical issue in the application were being admitted into evidence.
[39] In the result, the summons of Dr. Hasan was refused and his reports were filed without cross-examination. The Adjudicator appears to have based his conclusion largely on Dr. Hasan’s reports in finding that Ms. Nuroh’s impairments did not rise to the level of catastrophic impairment. I find that Ms. Nuroh was denied procedural fairness when the Adjudicator refused her request to issue a summons for Dr. Hasan.
[40] While Ms. Leahy was a less important witness than Dr. Hasan, the basis for the refusal of Ms. Nuroh’s initial request for a summons seemed to hinder procedural fairness rather than provide it: because a box was not checked off indicating the hearing was virtual when all oral hearings at the LAT are virtual and then when the form was immediately corrected, rejecting it as out of time. The ten-day notice requirement for service of a summons would not appear to be a pressing consideration with respect to an employee of TD.
[41] In addition to the summons for Ms. Leahy at the opening of the hearing being rejected as non-compliant with r. 8.2, it was also rejected on the basis that having received the adjuster’s logs, she was not a necessary witness. Having determined that this matter should be referred back to the Tribunal on the basis of the failure to issue a summons for Dr. Hasan, it is not necessary that there be a determination of whether the failure to issue a summons for Ms. Leahy caused procedural unfairness. However, I would point out that the basis on which the summons was initially rejected seems overly technical in the extreme. In addition, it seems doubtful that a claim for a special award could be made out on the basis of an adjuster’s logs without being able to ask questions of the adjuster as to whether she regularly revisited her decision regarding the denial of benefits based on new medical information. . Lamba v. Registrar Trust in Real Estate Services Act, 2002 and The Licence Appeal Tribunal
In Lamba v. Registrar Trust in Real Estate Services Act, 2002 and The Licence Appeal Tribunal (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a joint (Yatar) appeal-JR, this brought against a dismissal of a LAT appeal brought where "the Registrar, Trust in Real Estate Services Act, 2022, (TRESA) revoked Mr. Lamba’s license to be a registered real estate broker because he had improperly removed funds from his trust account".
Here the court considered a tribunal's [LAT] discretion to refuse to issue a summons [ie. "may require"] [SPPA s.12]:2. There was No Error and/or a Denial of Procedural Fairness for the Tribunal to Refuse the Appellant’s Request to Issue a Summons to the Registrar
[25] The Appellant maintains that the Tribunal “failed to properly exercise its discretion” when it denied his request for the issuance of a summons for Joseph Richer (the Registrar at the time).
[26] The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 12, allows a tribunal to require any person, by summons, to give evidence or to produce evidence at a hearing, relevant to the subject-matter of the proceeding. However, and as noted in the Tribunal Summons Decision, at para 6, “the Tribunal will only issue a summons for witnesses, documents or things that are relevant to the issues in dispute and admissible at a hearing” (Licence Appeal Tribunal Rules at Rule 8).
[27] The Tribunal provided cogent reasons in the Summons Decision for its denial of the requested summons based on the absence of relevance to either of the grounds raised in the NOP or to the subject of the appeal hearing. . CEO of Finance v. Stoliar
In CEO of Finance v. Stoliar (Ont Div Ct, 2025) the Ontario Divisional Court granted an "application by way of a stated case for a finding" that the respondents "failed to comply with a summons served upon them under section 444.1 of the Insurance Act, R.S.O. 1990, c. I.8 (the “Insurance Act”). The Applicant seeks a punishment akin to what a court can order on contempt.", this wrt an FSRA investigation:[5] After receiving a complaint in 2023, the FSRA began an investigation against several persons centered around allegations that Mr. Poshtarenko, in concert with others like Mr. Stoliar, was acting as an insurance agent without being licenced to do so. As the investigation unfolded, other alleged improprieties in contravention of the Insurance Act were uncovered. The Applicant issued summonses under section 444.1 of the Insurance Act to the Respondents to further the FSRA’s investigation.
[6] Section 444.1(1) states:The Chief Executive Officer may issue a summons where he or she believes that,
(a) it is necessary in order to determine whether a person is complying with this Act or a requirement imposed under this Act; and
(b) it is, in the circumstances, in the public interest. [7] Despite more than one summons issued to attend for examination, both Respondents failed to attend in answer to the summons.
[8] In the event of non-compliance, s. 444.1(6) of the Insurance Act provides:If the person does not comply with the summons, the Chief Executive Officer may state a case to the Divisional Court setting out the facts and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, the court may punish the person in the same manner as if the person had been guilty of contempt of the court. [9] To be clear, the Applicant is not seeking a finding of contempt of court. That is not available under s. 444.1(6). Rather, the provision provides a range of consequences for failing to comply with a summons similar to the orders available on a determination of a contempt of court. Therefore, not all aspects of a civil contempt proceeding applies; for example, a bifurcation of the proceedings between liability and penalty: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574.
[10] That being acknowledged, the “punishment” available under s. 444.1(6) includes the types of orders that are set out in Rule 60.11(5) of the Civil Rules of Procedure, R.R.O. 1990, Reg. 194 involving civil contempt of court. This includes a fine or imprisonment. Given the seriousness of the potential sanction, while the Applicant argues it is unnecessary to do so under s. 444.1(6), I find it prudent to apply the test for a civil contempt order. The three-part test as modified to the circumstances of s. 444.1 requires the Applicant to prove beyond a reasonable doubt: (1) the summons clearly and unequivocally states what should or should not be done; (2) the party alleged to have failed to comply with the summons has actual knowledge of it. Knowledge can be inferred in the circumstances or proven based on the wilful blindness doctrine; and (3) the party allegedly in breach must have intentionally failed to have complied with the summons: Carey v. Laiken, [2015] 2 S.C.R. 79, 2015 SCC 17, at paras. 32-35.
[11] After the exercise of great restraint and caution, I am satisfied beyond a reasonable doubt that the three elements have been made out for both Mr. Poshtarenko and Mr. Stoliar.
....
[16] On the facts before me, this application has been an enforcement mechanism of last rather than first resort: Carey v. Laiken, at para. 36. I make the finding against both men that they have failed to comply with a summons within the meaning of s. 444.1(6). . Binance Holdings Limited v The Ontario Securities Commission
In Binance Holdings Limited v The Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a judicial review against a Capital Markets Tribunal (CMT) denial of an order to stay an "Investigation Order and a Summons issued by the Ontario Securities Commission". The proceedings started out as a combined appeal/JR but the parties sought, and the court consented [grounded in their JRPA s.2(1) discretion], that only the JR would advance. In these quotes the court considers the test for staying the summons (it's the same as a stay pending appeal and interlocutory injunctions: the RJR-MacDonald test):[28] The parties agree that the applicable test on this motion is as articulated by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at para. 49. Here the application of the test to this case involves three questions:i. Is there a serious issue to be tried?
ii. Will Binance suffer irreparable harm if the stay is not granted?
iii. Does the balance of convenience favour an order granting a stay? ....
i. Is there a serious issue to be tried?
[33] The “serious issue to be tried” test requires that the motion judge assess the merits of the case. This branch of the test is not demanding. The applicant must show that the litigation is not frivolous or vexatious: RJR MacDonald Inc. at paras. 54-55.
[34] This is a preliminary assessment. It is not intended to be a prolonged or detailed evaluation of the merits of the matter, with two exceptions. The first exception is where the result of the interlocutory motion will determine the action or the issue. Where “either the grant or the refusal” will cause the very harm sought to be protected this will require a more detailed analysis of the merits: RJR MacDonald Inc., at paras. 55-59; Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 142 O.R. (3d) 481, at para. 10.
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[38] The second exception is where there is a simple question of constitutionality which can be settled by the motion judge. This is a narrow exception which would not apply where there are s. 1 issues that would require an expansive record that would not normally be before the motion judge: RJR MacDonald Inc., at paras. 60-61.
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The Question of Irreparable Harm
[63] The concept of irreparable harm is that the outcome of failing to grant the stay is such that it cannot be undone or compensated in damages. The court should focus on the nature of the harm, rather than its magnitude in the analysis: RJR-MacDonald, at para. 64.
[64] Examples of irreparable harm provided in RJR MacDonald, at para. 64, include instances where a party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), 1988 CanLII 5042 (SK KB), 48 D.L.R. (4th) 228 (Sask. Q.B.) ); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid v. Ethicon Ltd., [1975] A.C. 39); or where a permanent loss of natural resources will happen if the challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, 1985 CanLII 154 (BC CA), [1985] 3 W.W.R. 577 (B.C.C.A.).
[65] There must be more than mere speculation that irreparable harm “may” arise from the failure to grant the stay: Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 26, at para. 12.
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Do the Balance of Convenience and Public Interest Considerations Favour a Stay?
[76] As a result of my findings that Binance has failed to establish that there is a serious issue to be tried, or that it will suffer irreparable harm from the refusal of a stay, the balance of convenience does not favour granting a stay.
[77] This application for judicial review involves the authority of a law enforcement agency and legislation which has effectively been found to be constitutionally valid. The public interest is engaged at this stage of the analysis: Ainsley Financial Corp. v. Ontario Securities Commission, (1993), 1993 CanLII 5552 (ON SC), 14 O.R. (3d) 280, at pp. 303-4. . Jocko v Criminal Injuries Compensation Board
In the case of Jocko v Criminal Injuries Compensation Board (Ont Div Ct, 2009) the court held that s.5.4 did not authorize the Criminal Injuries Compensation Board to order pre-hearing documentary disclosure from non-parties (in that case police officers), be they witnesses or not. The Board's only authority to compel documentation from non-parties lay in it's general authority to issue summons to witnesses [SPPA s.12], which could specify the documents that non-party witnesses should bring with them to the hearing.
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