Accident Benefits Update: Nebs, and (Natural) Justice for All

S.A. v. Guarantee Insurance, 2019 CanLII 77002 (ON LAT)was an application for Reconsideration of the Licence Appeal Tribunal (LAT) decision in which the LAT adjudicator found the Applicant, S.A. was not entitled to Non-Earner Benefits (NEBs) following her February 5, 2016 collision.

S.A. claimed that the adjudicator had breached the rules of natural justice (i.e.: had denied the applicant a fair opportunity to present her case) by refusing her lawyer’s request to make closing arguments at the hearing and failing to ensure that she received accurate translation and interpretation.

Additionally, the applicant claimed that the adjudicator had made significant errors of law and fact relating to the tests for NEB entitlement and causation and failed to comprehend the entire body of evidence. Finally, she claimed that these breaches and errors raised a reasonable apprehension of bias against her. Therefore, she sought to have the matter remitted for a new hearing before a different LAT Member.

S.A. suffered extensive soft-tissue injuries in the 2016 collision, with ongoing pain, headaches, dizziness, depression and sleep disturbance. She applied for NEBs from July 2016 and ongoing, claiming that she suffered a complete inability to carry on a normal life. This claim was denied by the respondent, Guarantee Insurance (her accident benefits carrier), which prompted S.A. to file for a LAT hearing to decide the matter.

A case conference was held on July 5, 2018, but the parties failed to resolve the dispute. At this conference, the agreed to conduct a hybrid hearing, with written submissions followed by a one-day in person hearing for S.A.’s evidence, through a Somali interpreter.

At the end of S.A.’s cross-examination, her lawyer tried to make closing arguments. The adjudicator refused this request, stating that the terms for the hearing established at the case conference precluded closing arguments, which the parties had agreed would be presented in the written submissions. This was denied by S.A.’s lawyer.

The adjudicator held that S.A. was not entitled to NEBs.

In this Reconsideration, Member Jovanovic agreed with S.A. that denying her lawyer the opportunity to make closing arguments following her testimony was a denial of natural justice. In the written decision from December 20, 2018, the presiding adjudicator explained that the parties were at liberty to determine the nature of the hearing at the case conference, and they agreed to proceed in writing with an in-person hearing for the sole purpose of presenting and cross-examining S.A.’s evidence. This was preferable to conducting the entire hearing through interpreters. At the conference, no mention of closing arguments to follow was discussed.

Member Jovanovic pointed out that the adjudicator was not present at the case conference. Since S.A.’s lawyer denied that he consented to an order dispensing with oral argument, the adjudicator should have allowed him to proceed. Member Jovanovic cited Ladney et al and Township of Moore, an appeal from an Ontario Municipal Board hearing with similar facts:

The established procedures in our courts... require that a party be given the opportunity, not only to call evidence, but to present submissions or arguments before a decision is rendered. The only exceptions to this are those cases in which the court does not require to hear from a party before arriving at a decision in his favour, and cases where the parties do not choose to make submissions.

While this does not create an unfettered right to make closing submissions, Member Jovanovic found it instructive as justification for allowing them in this case. First, the case conference did not expressly exclude closing arguments. Second, as discussed, applicant’s counsel denied waiving them. Third, the respondent did not take the position that applicant’s counsel had waived closing argument. Fourth, there was no harm that could have resulted by allowing closing argument to proceed, but potential harm in not allowing them. Since S.A.’s evidence was filtered through an interpreter, and subjected to cross-examination, there was no way to know ahead of time whether the evidence would help or hurt her claim. The opportunity to deal with S.A.’s evidence in closing argument should have been provided to her lawyer. Finally, allowing closing submissions by both parties would not have interfered with the adjudicator’s expressed desire to conduct a "timely and efficient proceeding".

As a result of these considerations, Member Jovanovic ordered a new hearing on the same terms before a different adjudicator. Given this decision, he declined to deal with the other grounds for reconsideration.

If you have been seriously injured in a car accident, and have questions about Non-Earner Benefits entitlement, your accident benefits generally, or feel that were denied your fair opportunity to present your claim, we are pleased to offer a free expert legal consultation. Campisi LLP - "Clients First, Excellence Always!"