Adjudicator unbiased in her decisions in motor vehicle accident case: Ontario court

The adjudicator dismissed the motion and ordered the hearing to proceed. The appellant’s counsel did not file or call any evidence. The arbitrator issued a written ruling dismissing the application. She explained that the appellant had the onus to prove that she was entitled to benefits and failed to do so.

The appellant sought reconsideration. She submitted new evidence consisting of a doctor’s note addressing her psychological state.

Last August, the same adjudicator dismissed the reconsideration request. She found that the appellant could have made the new note available at the hearing and that the new evidence would not have impacted the result, in any case.

The appellant asked the appellate court to set aside the adjudicator’s decision and to remit the matter to the tribunal for a hearing by a new adjudicator.

Adjudicator’s decisions upheld

In Hutchinson v. Aviva General Insurance Company, 2023 ONSC 1472, the Ontario Divisional Court dismissed the appeal.

The court found that the adjudicator was fair to the appellant throughout the hearing. Specifically, she did the following: agreed to entertain a short-served motion, invited the appellant to tender medical evidence that the motion materials did not include, and canvassed multiple options for how to proceed with the matter so that she could accommodate the appellant’s condition.

The adjudicator also gave the appellant’s counsel an opportunity to consult with his client and with his firm’s senior counsel, to give submissions, and to explain his issue of not obtaining instructions to proceed, the court said.

The adjudicator was entitled to maintain control of the process of the hearing, the court held. The court tackled specific passages in the transcript of the proceedings. According to the court, the following passages showed no bias or breaches of procedural fairness or natural justice:

• At pages 27–28, the adjudicator was entitled to request or even demand supporting medical records confirming the appellant’s condition
• At pages 41–42, the adjudicator told the appellant’s counsel that it was a lawyer’s duty to procure evidence supporting a motion
• At pages 48–49, the adjudicator reminded counsel that she ordered the matter to move forward that same day
• At page 54, the adjudicator was justified in telling appellant’s counsel that the matter would proceed despite counsel’s insistence that he lacked instructions to do so
• At pages 58–59, the adjudicator fairly asked how counsel, as a member of the Law Society of Ontario, failed to obtain instructions to proceed
• At page 60, the adjudicator had the right to express her doubts about the veracity of counsel’s submissions

Next, the court determined that the adjudicator’s written decision accurately summarized the dispute’s background and issues. She also considered the appellant’s motion to convert, the court said.

Lastly, the court ruled that the adjudicator’s reconsideration decision adequately reviewed the hearing, the dismissed motion, and the order to proceed with the hearing. She acted within her statutory mandate and cited the correct authorities, the court added.