A request for reconsideration was filed by the insurer regarding a decision of October 29, 2021 wherein the Tribunal ordered a re-hearing on the second day of a three day hearing after unilaterally declaring a mistrial during the proceedings. The hearing addressed IRBs, an award and interest. At the subsequent case conference , the parties agreed that the adjudicator had erred in ordering a new hearing and that the hearing should continue. The claimant sought costs. The parties agreed to reserve new dates for the resumption of hearing scheduled for November 18-30, 2022 by videoconference. The format of the hearing and resulting unfairness was in dispute. The insurer submitted the remedy was to complete the hearing in a timely fashion at the earliest date convenient to the parties and the new adjudicator should be provided with the first two days of the hearing transcript to avoid repeating evidence and to save costs. subject to the new adjudicator requesting a fresh exam in chief of the claimant or to deal with other evidentiary issues. The claimant agreed the adjudicator erred, but submitted that the order did not dismiss the claim and a reconsideration was inappropriate. The claimant submitted that if the hearing resumed, the new adjudicator would only be able to observe the claimant on cross exam, which was procedurally unfair. In addition, some of the evidence already submitted and some of the questions ordered answered were irrelevant. Vice Chair Boyce indicated there was no doubt the Tribunal erred when it unilaterally declared a mistrial and ordered a new hearing in the middle of a hearing. Vice Chair Boyce noted the claimant argued the relevance of the insurer’s line of questioning and that certain evidence was not clear if it was not raising material misrepresentation. Vice Chair Boyce further noted the insurer’s response, the case conference summaries, and the case conference order confirmed that the issue of section 31 was not before the Tribunal. The adjudicator’s concerns arose after the insurer pursued a line of questioning that the adjudicator interpreted as raising the issue of material misrepresentation, which in the adjudicator’s view would prejudice the claimant. The insurer asserted at no time did either party ask the Tribunal to deal with section 31. Vice Chair Boyce indicated the error was compounded when neither party requested a new hearing, brought a motion for a new hearing, or were given an opportunity to make submissions regarding the adjudicator’s unilateral decision. The adjudicator also rejected the parties’ request to pause the proceeding to allow a review of the transcript. Vice Chair Boyce found the Tribunal’s decision to order a re-hearing prejudiced both parties and did not follow the Tribunal’s mandate to ensure a fair and efficient resolution of dispute. Vice Chair Boyce also noted the adjudicator erred in his decision as the Common Rules do not contemplate a mistrial or ordering a new hearing by a first instance adjudicator without submissions from a party. The only avenue of relief is Rule 18.4(b)(ii). Vice Chair Boyce agreed this was an exceptional issue of procedural unfairness that needed to be rectified by the Tribunal. Vice Chair Boyce granted the request for reconsideration. The Tribunal committed errors of law and fact that violated procedural fairness that affected the outcome of the hearing. Vice Chair Boyce ordered the Tribunal’s order for re-hearing cancelled pursuant to Rule 18.4(b)(i), the hearing that had already begun would be continued pursuant to Rule 18.4(b)(ii), and a new adjudicator would be assigned and the transcript provided to the new adjudicator in advance of the hearing. The issue of the claimant’s costs would be added to the issues in dispute as requested pursuant to Rule 19. The claimant would be permitted to bring motions for a fresh exam in chief and to raise any evidentiary concerns.
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