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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Appeals-Judicial Review - Fairness - Cross-Examination

. Shahin v. Intact Insurance Company

In Shahin v. Intact Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the appellant applied for 'catastrophic impairment' accident benefits which were denied by the insurer.

Here the court considered a procedural fairness argument, where the insurer's medical expert was not available for cross-examination by the appellant:
[3] Ms. Shahin submits the hearing was procedurally unfair in several ways. Her central submissions are as follows: First, the Tribunal unfairly relied on the evidence of Intact’s expert, Dr. West. Dr. West, a neuropsychologist, prepared a report in which he diagnosed Ms. Shahin with an adjustment disorder but did not find her to be catastrophically impaired. He testified in-chief at the hearing but when the time originally allocated for his cross-examination was used to hear a motion, he never re-attended to be cross-examined. Ms. Shahin submits the Tribunal unfairly failed to insist he attend for cross-examination and breached procedural fairness by relying on his evidence in its decision.


Did the Tribunal breach procedural fairness by relying on the evidence of Intact’s expert when he was not cross-examined?

[9] Ms. Shahin submits the Tribunal breached procedural fairness by not requiring Dr. West to re-attend for cross-examination. Dr. West had provided nearly 100 transcript pages of untested oral evidence. He initially re-attended but left when a motion brought by Ms. Shahin used the time allocated for his cross-examination. He did not respond when he was contacted to reattend. In Ms. Shahin’s submission, it is impossible to know that his unchallenged evidence did not influence the adjudicators. Further, in their reasons, the adjudicators cited the transcript of his evidence and relied on his report.

[10] Intact submits that the references to Dr. West’s evidence did not prejudice Ms. Shahin. It emphasizes that the Tribunal did not rely on Dr. West’s opinion regarding whether Ms. Shahin sustained a catastrophic impairment. Intact also submits that Ms. Shahin’s counsel strategically delayed cross-examining Dr. West by bringing a motion on the day that was allocated for Dr. West’s cross-examination.

[11] In my view, the Tribunal breached procedural fairness. Both parties rely on Baker, at paras. 23-27, for the factors to determine the level of procedural fairness owed in the circumstances of a particular case. In this case, those factors point to a high level of procedural fairness. This is most clearly evidenced by the nature of the hearing itself, which proceeded as a full, contested, oral hearing, with witnesses, including experts, examinations, and, apart from Dr. West, cross-examinations. The issues in the case were of substantial financial importance to Ms. Shahin.

[12] 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. ....


[18] The Tribunal referred to Dr. West’s evidence both to support its conclusions that the accident did not cause Ms. Shahin any injury and that her impairment did not rise to the level of catastrophic. The Tribunal of course also relied on substantial other evidence in support of these conclusions. Still, 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.
. Reisher v. Westdale Properties [for numbered case cites see main link]

In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court considers how the acceptance of hearsay evidence (absent the ability to cross-examination) is allowed by the SPPA and did not result in procedural unfairness in this case:
[45] On behalf of Jeanette Reisher, it is submitted that there was a denial of procedural fairness. In its decision of June 6, 2022, the Landlord and Tenant Board included the observation that:
The Landlord’s Property Manager testified that in addition to the two tenants who testified at the hearing, there are three additional tenant[s] who have complained about the tenant’s behaviour but were too afraid to testify at this hearing.[37]
[46] This statement indicates reliance on hearsay evidence which was accepted in the absence of any opportunity to question or cross-examine those tenants as to their complaints. The Statutory Powers Procedure Act, which applies to the proceedings of the Landlord and Tenant Board, provides as follows at s. 15(1):
Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
[47] The breadth of this section allows for the admission of hearsay evidence:
In proceedings before most administrative tribunals hearsay evidence is freely admissible and its weight is for a matter for the tribunal or board to decide, unless its receipt would amount to a clear denial of natural justice…[38]
The court closely-analyses this evidence at paras 48-56.

. Westdale Properties v. Reisher

In Westdale Properties v. Reisher (Div Court, 2023) the Divisional Court considered, and dismissed, a landlord's motion to quash an RTA s.210 appeal on being of "devoid of merit", in part due to the failure of the LTB to allow adequate 'testing' (cross-examination) of evidence:
[40] I disagree. A failure to accord procedural fairness may raise a question of law: see Harper v. Sauve, 2022 ONSC 5754 at para. 11. A tenant facing eviction may have a legitimate expectation that they will be able to test “key evidence” that is relied upon to support an eviction order: see Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 at para 44. Here, the LTB emphasized the fears of three tenants who did not attend the hearing.
. Carr v. Brown

In Carr v. Brown (Div Court, 2022) the Divisional Court allowed two appeals of two LTB virtual eviction applications that were decided in a highly confused procedure, one that the court characterized as "haphazard, confusing" [para 40]. The problem seems to have arisen from the member's attempt to hear the two related applications together 'to save time', but excluding the tenants from portions of the case that supposedly didn't involve them. The result was legally ludicrous, for example inviting the tenant's to cross-examine on direct examination that they had been excluded from hearing [para 32].

The court held that the hearing procedure was procedurally unfair, and also an error of law - which allowed it to apply RTA S.210 granting the appeals. The case is an example of how administrative law can degrade justice in Ontario.

. Terra Scapes Landscape Construction Inc. v. Ashtaryeh

In Terra Scapes Landscape Construction Inc. v. Ashtaryeh (Div Court, 2022) the Divisional Court granted a Small Claims Court appeal on fairness grounds, here for failure to allow cross-examination:
Procedural Fairness

[23] The Appellant submits that the proceeding before the deputy judge was unfair because he was not given an opportunity to cross-examine the Respondent. The Respondent disagrees.

[24] In considering the procedural fairness issue, it is necessary to keep in mind the particular mandate and context of the Small Claims Court, as highlighted by the Court of Appeal in Maple Ridge Community Management Limited v. Peel Condominium Corporation, 2015 ONCA 520, at paras. 34-35:
The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.

Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient.
[25] In Riddell v. Huynh, 2021 ONSC 7112, Kristjanson J. of this court observed that the emphasis on accessible, affordable justice is reflected in the provisions that govern Small Claims Court hearings. Under s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the “Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” Under s. 25, a “deputy judge has discretion to admit as evidence relevant documents and oral testimony regardless of whether or not the evidence is given or proven under oath or affirmation or admissible in evidence in any other court.”

[26] The Respondent relies on Earthcraft Landscape Ltd. v. Clayton, 2002 NSSC 259, at para. 14, in which the Nova Scotia Supreme Court held that the absence of cross-examination was not a breach of the principles of natural justice. In that case, the court observed that there were no authorities squarely on the issue of whether the principles of natural justice require a Small Claims Court to provide for formal cross-examination. While there was no cross-examination, the adjudicator had put the issues raised by each party to the other and effectively cross-examined the witnesses. The court found that “it is the substance, rather than the form, of cross-examination that is essential.”

[27] The parties were not able to direct me to any Ontario cases addressing the question of whether the failure to provide for cross examination in a trial before the Small Claims Court is a breach of procedural fairness.

[28] In Chanachowicz v. Winona Wood Ltd., 2016 ONSC 160, Hill J. found that the conduct of the trial by a deputy judge of the Small Claims Court was a miscarriage of justice, and set aside the judgment. In that case, the deputy judge had curtailed the defendant’s cross-examination of the plaintiff’s witnesses, erroneously excluded evidence, and did not permit the defendant to make closing submissions. The failure to permit the self-represented defendant to make closing submissions was found to be a sufficiently egregious error and denial of fundamental justice to allow the appeal.

[29] In respect of cross-examination, Hill J. noted, at para. 68, that: “[e]ffective cross-examination is recognized as the core of a fair trial and the right to cross-examine witnesses, while not absolute, should be without significant and unwarranted restraint.” (Internal citations and quotations omitted.) The curtailing of cross-examination by the defendant was an element of the unfairness of the trial as a whole. Hill J. provided the following guidance on the conduct of a trial involving self-represented litigants before the Small Claims Court, at paras. 78-79:
The claims before the trial court were relatively straightforward. The quantum of damages claimed by the respective parties were not significant. But to litigants before the court, fair resolution of their disputes was important. The trial judge’s sense that the trial should be completed in a day was entirely reasonable.

Not simply from the advantage of hindsight, but as a prudent practice in presiding over litigation involving one or more self-represented litigants, the court should routinely, at the outset of trial, provide instructions and information about trial procedure…, caution about adherence to the pleadings, preliminary review of what the parties consider the live issues to be, the expected manner of their discharge of proof of essential facts, discussion of admissions and agreed facts and documentary exhibits and testimonial evidence of witnesses not appearing, information to a defendant that he can prosecute his Defendant’s Claim in part through cross-examination of plaintiff witnesses, consultation about a trial timetable, etc.
[30] In this case, while recognizing that the Small Claims Court must hear and determine all questions of law and fact “in a summary way” and making allowances for the informality and efficiency necessitated in proceedings before it, I nonetheless find that the deputy judge’s failure to allow cross-examination was a breach of procedural fairness.

[31] In the circumstances of this case, the absence of cross-examination of either party was a significant gap giving rise to unfairness in the trial. That is because there was conflicting evidence as to how the changes to the project came about, whether they were requested by the Appellant and whether the Respondent brought to the Appellant’s attention that the changes would result in non-compliance with the grading plan. The Respondent testified that the changes were all made at the Appellant’s request. The Appellant testified that he provided feedback about aesthetics, such as the location of trees and plants, and not about grading, for which he relied on the Respondent’s expertise.

[32] The deputy judge found that the evidence as to who initiated the changes and whether the Respondent informed the Appellant that they were contrary to the plan was “lacking.” She nonetheless inferred that since there would be no reason for the Respondent to make the changes, the changes were made at the Appellant’s request. In order to make this inference, however, the deputy judge had to reject the Respondent’s evidence that he did not request changes to the grading plan. In making her findings, the deputy judge clearly preferred the evidence of the Respondent over the evidence of the Appellant. However, in the absence of cross-examination, the basis for preferring the Respondent’s evidence is not clear.

[33] Similarly, in awarding damages of $27,580 to the respondent, the deputy judge accepted that this represented the amount owing under the Contract. However, the Appellant disputed the amount owing. The Appellant’s evidence was that, even leaving aside the issue of the changes to the scope and plan, the balance owing was $21,676.08 and not $27,580, as the Respondent claimed. Again, there was conflicting evidence on a key issue. Neither party had the opportunity to test the other party’s assessment of damages through cross-examination. In awarding the Respondent the entire amount, the deputy judge must have preferred the Respondent’s evidence; she simply accepted that the amount sought by the Respondent was the balance due on the contract. The documents in evidence showed, however, that the Appellant disputed the balance owing, even without taking into consideration the grading issue and the additional costs.

[34] In my view, where there is conflicting testimonial evidence, trial fairness requires that the parties be afforded an opportunity to cross-examine each other’s witnesses. In this case, in preferring the Respondent’s evidence over the Appellant’s, the deputy judge in effect made credibility findings without explicitly stating so. Without cross-examination, however, the basis for finding one party more credible than the other is not apparent. The approach of the deputy judge was inappropriate and led to unfairness in the proceeding.

[35] This is not to suggest that procedural fairness requires formal cross-examination in every trial before the Small Claims Court. I agree with the finding in Earthcraft that it is the substance, rather than the form of cross-examination that is required. The issue is whether the evidence has been tested, whether by cross-examination by the opposing party or by questions from the adjudicator. In this case, the deputy judged posed a few questions, however, they related to the parties’ positions, and cannot be considered a testing of the evidence. Each party’s evidence was untested by cross-examination or otherwise.

[36] In addition, I find that the unfairness was compounded by the fact that Mr. Lof was given an opportunity to explain each of the documents that the Respondent sought to have entered into evidence and the Appellant was not. The Appellant’s documents were entered only as an after-thought, after the evidentiary portion of the hearing had been concluded. Moeover, there is nothing in the Judgment to suggest that the deputy judge considered the documents, or if she did not consider them, why they were not relevant.

[37] Accordingly, I find that the proceeding before the deputy judge lacked procedural fairness and that the Judgment must be set aside.


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Last modified: 17-04-24
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