In this case an elderly Greek lady was involved in an accident. She had significant evidence that she had a pre-existing problem which in the wording of S.4 of the Minor Injury Guideline provided the injured person might move out of the minor injury guidelines if they can establish to the Arbitrator that they had a “pre-existing medical condition” that was documented by a Health Practitioner before the accident . . . that will prevent the injured person from achieving maximal recovery from the minor injury. This lady had a rotator cuff injury and osteo-arthritis.
A great deal of the decision relates to procedural unfairness. The Plaintiff required a translator, there were eight people on the telephone line. Requests were made for viva voce (in person verbal evidence as opposed to Affidavits) evidence which was denied. The Arbitrator also refused to read about 140 pages of clinical notes and records that the Arbitrator said she could not read. No effort was made to have the records translated. They were simply treated as irrelevant without knowing what was in them. The Arbitrator also failed to follow the Rule in Brown and Dunn when testing the credibility of Dr. Khail. More particularly there was an allegation that there was an inconsistent statement that he had made which impeached his credibility. However, the rule in Brown and Dunn was not complied with which Rule provides as follows:
“The House of Lords in that case (1893) set out the following requirements for impeaching a witness:
I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him the opportunity of making an explanation which is open to him; and, as it seems to me that is not only a Rule of Professional practice in the conduct of a case”.
The Court also refused to allow viva voce evidence i.e. evidence in open Court as opposed to in Affidavits.
Counsel for Ms. Tsalikis also relied on S.5.2(4) of the Statutory Powers Procedure Act which requires the Tribunal to hold an in-person hearing to ensure the parties can hear one another. Further S.2 of that Legislation provides that the Legislation shall be liberally construed to secure a just, most expeditious and cost effective determination of every proceeding on its merits.
Also in Mitchell vs Money Direct Financial Services there was witness credibility and extensive evidence when a witness in person was required. Considering the entitlement of a party to evidence in open Court, the Supreme Court of Canada in Baker vs Canada (Minister of Citizenship and Immigration)  2 S.C.R. 819 determined . . .
“that failure to record an oral hearing and give notice to Ms. Baker or her children was inconsistent with the participatory rights required by the duty of fairness in these circumstances. At the heart of this analysis is whether, considering all of the circumstances, those who’s interests were affected, had a meaningful opportunity to present their case full and fairly.
This matter is now on its way to a Hearing before the Divisional Court of Ontario.