|
Fairness - Concessions in Argument. Intact Insurance Company v. Carpenter [withdrawal of concession]
In Intact Insurance Company v. Carpenter (Ont Div Ct, 2026) the Ontario Divisional Court allowed an insurer's SABS appeal, here brought against a LAT finding that a "Wheel Loader was an automobile within the meaning of s. 3(1) of the SABS."
The court considers a procedural fairness issue, here when the LAT did not require an "explicit statement by the Insured that he was withdrawing his concession":[23] In his written submissions the Insured conceded that the Wheel Loader “would not normally be considered to be an automobile in ordinary parlance.” This is an explicit concession that the first part of the test did not apply. In its Reconsideration Decision the LAT found that no such concession was made because, in his submissions on the third part of the test, the Insured referred to factors that were relevant to the first part of the test. This is an unreasonable position to take in the absence of an explicit statement by the Insured that he was withdrawing his concession and was now seeking to argue the first part of the test.
[24] The Insurer quite rightly relied on the Insured’s concession that the first part of the test was not in issue and made the choice not to make fulsome submissions on that issue. It pointed out that the purpose, function and indicia of a vehicle were irrelevant to the analysis under the third part of the test, which was the only part of the test at issue. It then made a cursory comment that the indicia of a vehicle do not make it an automobile. Had it known that the first part of the test was in fact in issue, it would have made much more fulsome submissions. This is apparent from its submissions requesting a reconsideration of the Decision.
[25] While a decision maker may have the right to reject a concession made by the parties, it is a denial of procedural fairness to do so without giving the parties the opportunity to make full submissions on the issue. Thus, in this case, before deciding the case on the first part of the test, the LAT should have written to the parties asking them to outline why they were both taking the position that the first part of the test did not apply.
|
