One of the rules of a trial which many people may not be aware of is the requirement for evidence to be entered in a formal fashion through the use of witnesses who can speak to the validity of evidence while also giving opposing lawyers the opportunity to question the accuracy of evidence. But sometimes facts may be delivered outside of this fashion, leading parties to question whether the evidence should have been considered by the judge or jury at all. This was the situation in a decision recently appealed, in which an insurance company said a lower court judge relied improperly on evidence not submitted to the court in issuing its decision.

Family’s house is claimed by forest fires

The respondents in the case own a house in the neighbourhood of Wood Buffalo, in Fort McMurray. The region suffered serious forest fires in the spring of 2016. The respondents claimed that the forest fire was responsible for damage to their home, but the insurance company did not agree on whether the claimed damage had occurred.

The matter made its way to an umpire, who concluded that the respondents’ claim was correct, ordering the insurer to pay out in accordance with the insurance policy. However, the insurer appealed on the basis that the umpire breached the rules of natural justice by relying on information not placed on the record by the parties.

The evidence in question was a report issued by the Government of Alberta and relied on by the umpire. The report included footnotes as well as an aerial map showing how close the fire came to the home.

The respondents conceded that some of the information was not placed on the record by the parties, but took the position that the information wasn’t really in dispute.

Importance of knowing what evidence will be considered

The court stated that the parties to a dispute are entitled to be aware of the information that will be relied on by an adjudicator. This allows parties to provide submissions on the relevance and proper interpretation of the material. If an adjudicator intends to take judicial note of information on their own, they should alert the parties.

With that said, the court also noted that administrative tribunals will develop a level of expertise and knowledge about matters that come before them, which allows them to take a broader approach to notice background facts. Still, the court acknowledged that when this happens, the court should still let the parties know of the evidence being relied upon.

Did the evidence have a material impact on the decision?

In reviewing whether the umpire’s decision could be successfully appealed, the court asked if the information in dispute had any material impact on the umpire’s decision. In this case, the court found it did not, adding that the umpire did not lose sight of the facts before him or whether or not the respondents’ home was indeed damaged by fire.

As a result, the court found that despite the breach of the rules of procedural fairness, the decision should not be set aside.

Our Insurance Team has an in-depth knowledge of the insurance industry that comes from decades of experience litigating insurance-related matters. We are committed to finding the best strategy for our client, whether that is through civil litigation, arbitration, or mediation. For legal advice relating to a property loss matter, or claim for subrogated recovery, contact us online or call 1-800-480-3534 to make an appointment. We represent clients on litigation matters in Calgary, throughout Alberta, and across Western Canada.