9 Months of LAT: Statistical Analysis of Decisions to Date

happy birthday candles below Ontario crest

Starting April 1, 2016, the Licence Appeal Tribunal (LAT) took over hearing Statutory Accident Benefits disputes. The first LAT decision was released online in July 2016. With the LAT just turning 9 months old, this post will examine the LAT decisions published online to date (or at least as of January 12, 2017).

There are 20 first-level LAT decisions (and 1 appeal/reconsideration) published on CanLII. From those first-level decisions, the following “statistics” emerge:

  • The most common issue is MIG (7 out of 20 decisions). Other issues include Income Replacement Benefits and Treatment Plan disputes. There are no LAT Catastrophic decisions published to date.
  • The vast majority of hearings are conducted in writing (15 out of 20 decisions). The remainder of the decisions were hearings conducted by teleconference or some combination of teleconference and written submissions. There are no reported decisions of in-person hearings.
  • The LAT is publishing written decisions on “preliminary issues”. So far, 5 out of 20 decisions are classified as decisions on preliminary issues.
  • The decisions range in length from 2 pages to 12 pages (excluding the cover page). The average length is 6.7 pages. Even the IRB decisions have been 6-8 pages.
  • The most prolific decision writer is Adjudicator Sewrattan (5), just ahead of Adjudicator Flude (4).
  • The LAT Adjudicators are, generally, referring to previous jurisprudence (from either the courts or FSCO). In 13 out of 20 decisions, at least one case was cited. The decisions cite an average of 1.25 cases. The high is 5 cases. The most “popular” decision to cite is Scarlett v. Belair (which is not surprising given the amount of MIG issues the LAT is dealing with).
  • The most common respondent (insurer) is Aviva (4), just ahead of Intact (3) and Certas/State Farm (3).
  • In most cases costs are not even requested (15 out of 20 decisions). There are no instances of costs actually being awarded.

 

Though 20 decisions is a small and early sample size, the following trends appear:

  • The LAT is conducting a lot of hearings in writing. Counsel should be ready for that and prepare to tailor their evidence and argument accordingly.
  • The LAT is keeping their decisions short (as expected).
  • The LAT is not ignoring previous case-law.
  • Counsel should turn their minds to the costs issue and request it when merited. Remember, LAT costs are for when a party has acted “unreasonably, frivolously, vexatiously, or in bad faith”. If you are going to request costs, have evidence in support.

 

If you’d like a spreadsheet tracking/summarizing (very briefly!) each LAT decision to date, email me or message me on Twitter.

Duncan Macgillivray
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Duncan understands that bad things sometimes happen to good people. Duncan helps clients with all types of serious personal injury matters, including motor vehicle accidents, snowmobile accidents, ATV accidents, slip and falls, and plane crashes. He is also experienced in Long-Term Disability insurance denials, Canada Pension Plan Disability appeals, and other insurance matters. A bright mind and ambitious approach, Duncan is recognized as a thought leader in the Thunder Bay legal community, teaching Insurance Law at the Bora Laskin Faculty of Law at Lakehead University, and a committed community player, as reflected in his Citizen of Exceptional Achievement Award (2015) and Top 20 Under 40 Visionary Award.