What’s going on at the LAT these days?

Recent Shuttleworth decision underscores that there are more problems than just the appearance of the independence of the review process.

Last week, the Divisional Court decision in Shuttleworth v SLASTO and Peel Mutual highlighted only the latest issues with respect to problems with the Automobile Accident Benefits Service at the Licence Appeal Tribunal (LAT).

In the decision, Thorburn J. set aside the decision of the adjudicator and referred the matter back to the LAT for a new hearing. The applicant, Mary Shuttleworth, sustained serious physical and psychological injuries in an accident on September 28, 2012. Her case was appealed to the LAT where an adjudicator decided that she was not catastrophically impaired.

Some seven months after that decision, her lawyer received an anonymous note that the decision had been reviewed and changed by the Executive Chair of the LAT to make the applicant not catastrophically impaired.

Initially, much was made of the anonymous note that had been submitted into evidence – not for the truth of its contents but for the narrative it established, according to the Judge, with respect to the concern on the part of the applicant about independence of the decision at the LAT.

That note, which read in part as follows, was quite concerning: “This decision then went up for review and the [executive chair] Linda Lamoureux changed the decision to make the applicant not catastrophically, impaired.” Understandably, there was concern about the potential beyond this case for interference at the LAT for other cases.

While the Judge was unable to conclude that the adjudicator “did not make her decision  independently,” the process at the LAT, which included a review “imposed” by the Executive Chair created a “reasonable apprehension of [a] lack of independence.”

With respect to the internal review process, it seems reasonable that adjudicators should be free to discuss their decisions, the case law, etc., but at a minimum, if any new case law is considered it should be revealed to the parties for further comment.

Perhaps if a decision is subject to peer review, it should also be revealed to the parties, with a note from the adjudicator listing any issues that arose during the review, and again welcoming further comment.

Should the Executive Chair have any role to play in the peer review? Again, it seems reasonable that the Executive Chair should be excluded from being involved in internal peer review of decisions made at first instance, considering she is responsible for Reconsideration decisions.

Also, the four streams of internal peer reviews of adjudication decisions need to be fully transparent and only initiated at the request of the Adjudicator, to correct the problem in this case.

Ultimately, the only way to secure the independence of the Adjudicators is to tenure them like the FSCO Arbitrators were, and Judges are. Currently, most Adjudicators are paid per diem on two- or three-year contracts.

Beyond this decision and the issues it raised, there are ongoing concerns with the LAT.

As early as March 2017, OTLA wrote to the Attorney General to highlight concerns about the lack of cost provisions at the LAT and that this deficiency could threaten the “very purpose” of the LAT which was to provide accessible, proportional and prompt resolution of disputes and timely treatment for accident victims.  Currently, the LAT’s Rule of Practice and Procedure do not allow for costs except in extremely limited circumstances.

The unavailability of a legal costs award to a successful LAT Applicant creates a most uneven playing field in favour of insurance companies and creates an access-to-justice barrier that cannot be overstated. Indeed, Justice Cunningham in his February 2014 review of the Automobile Insurance Dispute Resolution System commented upon the economic imbalance between the insurance industry and injured applicants. Justice Cunningham recommended that successful parties at the LAT be awarded legal costs and disbursements.

The problem, as OTLA wrote more than 15 months ago, is that insurance industry will continue to hire and pay lawyers for every LAT dispute and will continue to arm themselves with costly medical reports favouring their position. In fact, since 2011, insurers have spent over $600 million in medical assessment costs to deny claims. As it stands now, injured persons have no practical ability to be able to meaningfully challenge insurer decisions to deny or terminate the payment of benefits. Over time, this will encourage insurers to refuse even more benefits, knowing that a successful challenge to those refusals will be difficult, if not impossible. The need for a level playing field is no less urgent than in March 2017. The LAT should adopt a legal cost and expense regime similar to the regime that was in place at FSCO for the past 20 years.

In addition to the costs issue, there are growing concerns about how LAT decisions are cited. The LAT should include the full name of all applicants on LAT decisions, except in exceptional circumstances, otherwise access to justice is defeated whereby case law cannot be properly researched. The LAT should also allow for caucusing during Case Conferences. The LAT quietly allows this in CAT cases.

And, finally, the LAT should consider allowing for interaction between stakeholders and the LAT, similar to the FSCO Counsel Forum that existed.

The recent Shuttleworth case certainly highlighted real concerns with the LAT. Action should not be limited, however, to the issue of the involvement of the Executive Chair in the peer review process, and should extend well beyond to address structural and design flaw in the AABS process inherent since the inception of the LAT.