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Fairness - Limiting Evidence (2). Paesano v. Coseco Insurance Co.
In Paesano v. Coseco Insurance Co. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a LAT SABS JR.
Here the court considers an administrative 'Procrustes' evidence issue as a fairness matter:The Applicant received a fair hearing
[74] The Applicant submits that she was denied a fair hearing because:(a) She was not permitted to call Dr. Berkhout at the hearing; and
(b) Her disclosure request was denied. [75] The Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, remains the starting point for an analysis of procedural fairness. The factors to consider include:(a) The nature of the decision being made and the process followed in making it;
(b) The nature of the statutory scheme and the terms of the statue pursuant to which the body operates;
(c) The importance of the decision to the individual affected;
(d) The legitimate expectations of the person challenging the decision' and
(e) The choices of procedure made by the agency itself. [76] In this case, the Statutory Powers Procedure Act, R.S.O. 1990, c. 22 (the "SPPA"), applied to the hearing before the Tribunal. Section 25.1(1) provides that a Tribunal may make rules governing the practice and procedure before it. Section 2 provides that any rule made by a tribunal shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. This is reiterated in r. 3.1 of the Licence Appeal Tribunal Rules.
[77] Rule 3.2 provides that 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.
[78] The Tribunal is in the best position to ensure that it maintains procedural fairness while balancing efficiency and participation by litigants before the Tribunal to ensure that there is natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560. It is "the master in its own house it also had the power to determine when it was most efficient and just to conduct a hearing of the appeal": Toronto (City) v. Avenue Road Eglinton Community Assn., 2019 ONSC 146, 84 M.P.L.R. (5th) 239 (Div. Ct.), at para. 60.
[79] The adjudicator made several procedural orders during the hearing and the Tribunal set out the reasons for their decisions in the written Decision.
[80] The Applicant made a request on the second day of the hearing that she be permitted to call Dr. Berkhout as a witness. Dr. Berkhout was the Applicant's treating physician on her recent admission to hospital. The Tribunal found that it would be unfair to allow a witness to testify without providing sufficient notice to the other side.
[81] The Tribunal relied on r. 9.2(b) that provides that a party must give notice of the witness it intends to call along with a brief description of the witness' anticipated testimony, at least ten days prior to the hearing. Rule 9.4 prohibits a party from calling a late witness to give evidence without the Tribunal's consent. The Tribunal found that the Applicant had Dr. Berkhout's notes by May 10, 2023, but only gave notice that she intended to call him as a witness on the second day of the hearing. The Tribunal found that it would be procedurally unfair to allow Dr. Berkhout to be called as a witness.
[82] There is nothing procedurally unfair about the Tribunal's decision and the Application cannot succeed on this ground.
[83] On the fifth day of the eight-day hearing, the Applicant made a disclosure request. The Tribunal denied the request. Although the Tribunal found the requested documents were relevant, the request was made late. The Applicant could have brought a motion in advance of the hearing but elected not to do so. The Tribunal noted that many of the documents requested were not in the Respondent's possession and obtaining them at this stage would result in an adjournment of the hearing. The Tribunal found that the delay would be more prejudicial to both parties than the potential probative value of the records requested.
[84] I find nothing unfair in the procedure at the hearing. It is within the Tribunal's purview to control its own process and procedure. The application cannot succeed on this ground.
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