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Are Accident Victims Getting A Fair Hearing Before The LAT?

Kelly + Singh Lawyers LLP > Personal Injury  > Are Accident Victims Getting A Fair Hearing Before The LAT?

Are Accident Victims Getting A Fair Hearing Before The LAT?

LAT unfair decision making

When deciding whether an adjudicative proceeding like a trial or a tribunal hearing has been conducted fairly, appellate judges will often cite a fundamental judicial principle: “that justice must not only be done but must be seen to be done”. This principle stands for the fact that the public needs to have confidence that any such hearings are decided  by the judge or adjudicator based on the evidence presented by the parties at the hearing in a fair and open forum.  Part of this process means that the judge or adjudicator allows the parties to make submissions on points to which the adjudicator is directing their minds. If these decisions are made through the influence of any external factors this represents a fundamental problem to the judicial principle of fair adjudication.

A recent Divisional Court decision that critically reviewed an Accident Benefits adjudication at the License Appeals Tribunal (the LAT) has shed light on a decision-making process at the License Appeals Tribunal that fundamentally contradicts this cornerstone of judicial fairness. Mary Shuttleworth suffered a traumatic brain injury in a 2012 motor vehicle accident. The benefits she got from her insurer were not enough to help her recovery, so she requested that her insurer designate her as “catastrophically impaired”. The designation would increase the monetary cap for Mary’s benefits, giving her access to more medical treatment, attendant care and other assistance. Her insurer denied her request.

Accident benefits for car accidents (benefits paid by one’s own policy regardless of fault) have long been a critical part of compensation for car accident victims. A determination of whether someone’s injuries are considered “catastrophic” under the Accident Benefits regime involves very complex assessments. Usually a team of doctors on each side of the dispute will provide opinions on whether the person reaches certain impairment ratings under each category of injury as set out by the American Medical Association Guidelines.

When the insurer denied Mary’s request to be designated as catastrophic, Mary was forced to take her dispute to the LAT.  Until April 2016, these cases were decided by FSCO, a Tribunal well informed of the complex Accident Benefits Regime which was generally thought to give well-reasoned decisions. Luckily for Mary, the case was heard by an experienced adjudicator who came over to the LAT from FSCO and brought all of her knowledge and expertise to the decision. However, Mary lost the hearing, as the ruling found her impairments fell just shy of the necessary threshold to be designated as “catastrophically impaired”.

Shockingly, months after the decision was released, Mary’s lawyer received an anonymous letter indicating that the adjudicator who decided the case initially was going to decide in Mary’s favour, but that unknown to Mary or her lawyer, the Chair of the LAT told the adjudicator to change her decision so that Mary would not meet the test to be considered catastrophic. The idea that an adjudicator would be compelled to change their decision behind closed doors by her administrative superior flies in the face of the core principles of fairness and justice in an adjudicative process.  The Plaintiff moved to file this letter with the Divisional Court. The Court set aside the decision and ordered a new hearing and the case made news headlines.

The Divisional court wouldn’t go as far as saying there was in fact improper influence in this situation, since internal peer-review can in some cases be acceptable, but the court was particularly concerned about the fact that the Chair of the LAT was technically the adjudicators superior and intervened in the decision-making process of the case without any request for guidance by the adjudicator. The case has exposed a concerning “decision making process” at the LAT and has raised alarm bells among many personal injury lawyers about how many decisions at the LAT have been improperly interfered with.  The fact that in the initial months a high percentage of decisions from the LAT seemed to favour insurance companies only reinforces those concerns.

While administrative tribunals are not subject to the same level of procedural and evidence rules as a court, they must comply with principles of basic fairness and justice, particularly when their decisions are crucial to the well-being of thousands of accident victims. Will accident victims get a fair hearing at the LAT? The case is currently under appeal to the Ontario Court of Appeal, but until the LAT comes clean about exactly what their adjudicative decision-making process entails, it’s probably best to maintain a healthy dose of skepticism.

 

Want to learn more about Accident Benefits and the LAT? Check out our blogs on this topic:

Auto Insurance Industry Reaps Profits As Car Accident Victims Pay The Price Of Reforms

How “Justice For All” Has Become Tribunals For Most

Car Insurance System Failing According To Former Head Of WSIB

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