This is is not an attempt by the Appellant to re-open the “expense hearing.” While the record suggests that the parties consented to a process, it is less clear what that process was and what issues it was meant to address. Thus, while the Insurer may have consented on June 25, 2015 to filing written submissions, it is hotly contested whether the Arbitrator’s oral and written directions to the parties were clear and unequivocal so that all parties knew the issues they were to address in those written submissions and whether there would be an opportunity later for a reconvening of the oral hearing.
In circumstances where at least a prima facie case of procedural unfairness has been established, it is unlikely that details of procedural irregularities will appear on the face of the impugned decision. That evidence will often have to come from other sources, such as: a transcript (if the proceedings were recorded); correspondence between the parties or between the tribunal and one or both parties; or, sworn evidence from persons who were involved. Thus, whether the affidavit of Eric Grigg can remain part of the appeal record is not properly characterized as a question of whether “fresh” evidence ought to be admitted on appeal. It is evidence that is relevant to the Insurer’s allegation that it was denied a fair hearing and was not given proper notice of the issues in dispute and a fair opportunity to address those issues. Seen in this context, I believe that the case law upon which the Respondent seeks to rely about the circumstances under which fresh evidence can be adduced on appeal is irrelevant with respect to this affidavit.