A Look Into How an Adjudicator is Trained at the LAT

• Guest Author


• 24 Dec 2020

Guest Author: Laura Dickson, Lamont Law

In 2018, the independence of the adjudicators and decision-making process was called into question by the Divisional Court. The Divisional Court in Shuttleworth found that, although some outside influence on reason writing was considered permissible, the Court held that there ought to be an institutional consultation procedure in place to safeguard the independence of the decision-maker. The Ontario Court of Appeal confirmed the Divisional Court’s finding that the review process in this case lacked the appropriate procedural safeguards

The Adjudicative Tribunals Accountability, Governance and Appointments Act, which governs SLASTO, contains formal processes to ensure the accountability of tribunal members and officers both internally and to the public, and requires not only that there be a written policy, but that tribunals must make all such documents available to the public.  

On the heels of the Shuttleworth decision, the internal review process was to change. It has been over a year since the Court of Appeal upheld the Divisional Court’s findings and we had not been provided with an update as to whether the internal review process has changed and if so, what changes were made.

In light of this, we anticipated there were processes and procedures in place that are not readily available or posted to the LAT website; such policies about booking hearings outside of Toronto or the length of hearings depending on the benefit in dispute. 

As a result, OTLA made a further Freedom of Information request for the updated training materials for all Adjudicators. The materials are lengthy but here are a few take-aways that everyone should be aware of:

Scheduling of Hearings
It appears the tribunal does not have formal requirements or guidelines that certain types of matters must be heard by a specific format. However, the materials expressly state:

• Experience shows that often, but not always …
  • In person hearings are effective for
    • 1) weekly benefits (such as IRB, NEB, ACB)
    • 2) where credibility is an issue
    • 3) dispute that involve several or complex medical issues such as CAT or
    • 4) self reps who are not familiar with process.
      
  • Hybrid hearings are effective if a limited portion of evidence needs in person examinations or the cost of a hearing is raised.
    
  • Written hearings are noted to be effective for preliminary hearings, for matters involving the Minor Injury Guideline, for a few treatment plans, where only a point of law is in dispute or a small amount is at issue.

In regard to the length of the hearings, the materials state that:

• Many IRB or NEB matters are conducted as 2-day hearings but multiple or complicated issues can take longer

• CAT hearings are often 3 or more days.

Special Award Training
The first training presentation slide on special awards indicates “rarely, an adjudicator makes a ruling, granting a special punitive award against an insurance company for how it handled an insured’s file”.

The materials suggest a special award is to be awarded for unreasonable behaviour and define “unreasonable” as behaviour by an insurer in withholding or delaying payments that can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate (from Plowright and Wellington Insurance Company OIC A-003985 October 29, 1993)

Adjudicators are given three examples of the older “special award” including:

• Insurer failed to consider additional medical documentation provided by the insured, the insurer’s conduct has been found to be inflexible, and accordingly unreasonable – Hernandez v. Zurich August 1998
• Failure to share IE reports – Housnell v. Zurich April 1994
• Failure to disclose its expert reports and took an “adversarial and confrontational approach in the proceedings” – Whitney v. Coop March 1993

Chronic Pain Training
Adjudicators are provided training on chronic pain and related case law. In particular they are referred to cases such as Martin v. Nova Scotia and TS v. Aviva.  They are offered the following questions to consider as part of their training.

• Should those who suffer from chronic pain be held to a higher standard of proof?
• Should their credibility be subject to greater scrutiny than someone with a broken bone?
• Will chronic pain take someone out of the MIG?

OTLA continues to engage with the LAT and other stakeholders in an attempt to improve the LAT and its processes. See more HERE.