Court confirms no breach of procedural fairness rights in party not being able to cross-examine witness when party had not specifically requested to do so

Procedural fairness rights not breached due to applicant not having opportunity to cross-examine opposing expert when applicant did not make an express, specific application that the expert be called for cross-examination.

Administrative law – Decisions reviewed – Insurance Appeal Committee – Judicial review – Procedural requirements and fairness – Natural justice – Evidence – Standard of review – Reasonableness – Natural resources – Agriculture

Agricultural Financial Services Corp. v. Trentham, [2020] A.J. No. 1197, 2020 ABQB 681, Alberta Court of Queen’s Bench, November 4, 2020, J.M. Ross J.

The respondent farmers had hail damage insurance for their crops with the applicant Agricultural Financial Services Corporation. In 2018, they reported damage to their canola crops from a weather event, which included hail, but the insurer denied the claim on the basis of its determination that, according to the weather records they obtained from the closest weather station, there had been no hail (only very strong winds) and thus no coverage for the damage. The farmers appealed the denial, and provided the Hail & Crop Insurance Appeal Committee with witness statements about the hail as well as a report they had procured from an independent adjuster confirming and appraising the hail damage, which said it damaged between 30 to 39% of the plants on the affected fields. In argument, the insurer noted an objection to the report on the basis that they could not ask the adjuster questions about his findings; however, they did not actually request that the adjuster be ordered to attend for cross-examination. The Committee relied upon the adjuster’s report and ordered the insurer to pay the farmers 34% indemnity for their losses.

The insurer applied for judicial review of the Committee’s decision on a number of grounds, including that it was procedurally unfair for the Committee to rely upon the adjuster’s report when the insurer did not have an opportunity to cross-examine the adjuster. The court dismissed the application, noting “a generalized objection for not having the ability to ask questions from an absent witness is not equivalent to an express and specific application to compel the appearance of the witness before the administrative tribunal.” In the absence of a direct request to compel the witness and a corresponding refusal by the tribunal, the applicant’s inability to cross examine the witness did not constitute a breach of procedural fairness. In the adversarial context, it was not the tribunal’s onus or role to issue an unsolicited order compelling a party’s expert to appear. Even if the insurer had validly expressed its objection, the court said the Committee nevertheless had the authority and discretion to admit the report into evidence and determine the weight it would be given in light of the objection.

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at khill@harpergrey.com.

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