The Appellant appealed from, and sought, judicial review of two decisions of the Licence Appeal Tribunal (LAT). In his original decision, LAT Vice Chair Tyler Moore (VC Moore) determined that the Appellant was entitled to supervised aqua therapy and psychological treatment and interest for those therapies but not entitled to other benefits which included: attendant care benefits, a four-wheel scooter, a power lift chair, home modifications, rent and occupational therapy. The Appellant’s request for reconsideration was heard by VC Moore and dismissed.
On appeal, the Appellant argued that VC Moore denied her procedural fairness and made errors of law. On the application for judicial review, the Appellant argued that VC Moore’s decisions were unreasonable and should not be allowed to stand.
The Divisional Court held that the Appellant was not afforded a fair hearing and ordered the matter remitted back to the LAT for a new hearing before a different adjudicator. As the Divisional Court allowed the appeal on grounds of procedural unfairness, it did not address the issues raised by way of judicial review.
Background
The Appellant was a 40-year-old person under disability. She was born with cerebral palsy and had a longstanding history of physical, psychiatric and cognitive limitations.
On May 30, 2019, the Appellant was involved in a motor vehicle collision. She asserted that she sustained a mild traumatic brain injury/concussion, back injury resulting in chronic back pain, post-traumatic stress disorder, depression, and somatic symptom disorder and that she was now reliant on a walker for ambulation. She sought benefits from her insurer, Economical Insurance Company (the Respondent), pursuant to the Statutory Accident Benefits Schedule (SABS).
The Respondent initially approved the benefits claimed but then terminated the benefits following a number of insurer examinations arranged by Dynamic Functional Solutions (DFS). The Appellant launched her application to the LAT to dispute the denials.
The Length of the Hearing
Prior to the start of the hearing before VC Moore, the parties attended a case conference with Adjudicator Gosio, who determined that this matter would be heard in conjunction with a file brought by the Appellant’s mother, who was also injured in the collision. Adjudicator Gosio allocated 20 days for the combined hearing.
At the outset of the hearing, and before hearing any submissions from the parties, VC Moore ordered that the Appellant’s application, and that of her mother, would be heard separately. VC Moore also ordered that the Appellant’s application would be allowed only five days of hearing time. VC Moore told Appellant’s counsel that he needed to pare his witness list down significantly given the time limit he had just set for the hearing.
The Report of Occupational Therapist Janelle MacKinnon
Given the Appellant’s pre-collision medical condition, a significant issue at the hearing was whether the collision had resulted in the Appellant having suffered a change in her level of dependency. The Respondent retained various medical experts through DFS to address this issue including Janelle MacKinnon, an occupational therapist. Ms. MacKinnon’s reports were inconsistent with one another on key issues. Ms. MacKinnon conducted one assessment on October 16, 2020, and wrote three subsequent reports based on that assessment. In two of her reports, dated February 26, 2021, Ms. MacKinnon found that the Appellant demonstrated a “greater level of dependency” after the collision. However, in her third report, also dated February 26, 2021, Ms. MacKinnon found that the Appellant demonstrated the “same level of dependency” after the collision.
Although the Appellant had asked the Respondent for the complete DFS file prior to the hearing before VC Moore, it was not produced. The Appellant sought and secured a subpoena from the LAT directed to DFS to produce its file at the hearing. A representative of DFS, Laura Florentino-Radzio, was scheduled to attend the hearing with a complete copy of the DFS file. At the hearing, however, VC Moore refused to order Ms. Radzio to produce the DFS file. That said, he allowed the Appellant to call Ms. Radzio as a witness for a limited 30-minute period.
Ms. Radzio testified that there were eight versions of Ms. MacKinnon’s third report. In the first version, Ms. MacKinnon found that the Appellant demonstrated a “greater level of dependency” after the collision. In the seventh version, “greater level of dependency” was altered to “same level of dependency.” Ms. Radzio testified that Ms. MacKinnon’s three reports were consistent with each other up until sometime within a week of their release, more than four months after the original assessment had already taken place.
After Ms. Radzio’s testimony, the Appellant renewed her motion for production of the DFS file. VC Moore upheld his previous ruling and refused to have DFS produce its file to the Appellant as required by the Summons to Witness.
In addition, and notwithstanding that Ms. MacKinnon was shown on the Respondent’s witness list prior to the commencement of the hearing, VC Moore did not allow Appellant’s counsel to call Ms. MacKinnon for cross-examination, and her reports went into evidence unchallenged.
The Divisional Court’s Analysis
The Divisional Court ultimately held that what happened before VC Moore failed to accord the Appellant procedural fairness. The Divisional Court concluded that the decision of VC Moore to unilaterally change the length of the hearing; his decision to unilaterally sever the hearings of the Appellant and her mother; and his decision to refuse the Appellant’s request to cross-examine Ms. MacKinnon were unfair to the Appellant.
The Divisional Court determined that it was fundamentally unfair of VC Moore to confront the parties at the beginning of the hearing with a unilateral decision to separate the Appellant’s hearing from that of her mother and to change the length of the hearing from 20 days to 5 days. The Divisional Court stated that “[i]f the endorsement of a prehearing adjudicator like that of Adjudicator Gosio is going to be altered in a material way, there is an obligation on the part of the LAT to provide reasonable and sufficient notice to the parties to make fulsome submissions.”
In his reconsideration decision, VC Moore stated that “the applicant agreed that the hearing would not take more than five days in total.” The Appellant submitted that VC Moore was engaging in “revisionist history” and that his statements in the reconsideration decision were “patently false.” The Divisional Court agreed and stated that it would order a new hearing on this basis alone.
The Divisional Court also found that the refusal of VC Moore to allow cross-examination of Ms. MacKinnon was a denial of procedural fairness, stating that “[w]hile the LAT may have its own procedural rules that allow for the most expeditious and cost-effective hearing of a dispute, those rules do not allow for an unfair process by which an expert’s opinion can become unchallenged evidence – this is doubly so where there is a prima facie inconsistency of significance exposed in the expert’s reports.”
In his reconsideration decision, VC Moore determined that he was satisfied that any inconsistencies in Ms. MacKinnon’s reports were cleared up by Ms. Radzio’s evidence. The Divisional Court stated that “[t]his conclusion reflects a fundamental misunderstanding of the role of an expert, the imperative for the trier of fact to assess the reliability and credibility of the expert’s evidence, and the proper role of an assessment company.”
The Divisional Court further commented on the proper role of an assessment company:
“This court is not blind to the ever increasing use of medical assessment companies like DFS in disputes before the LAT and in personal injury litigation in general. These companies provide ready access to experts in multiple disciplines. The experts engaged whether for one side or the other are to provide their opinions to the ultimate trier of fact uninfluenced by the party retaining them. The opinions must be independent, fair and objective. If the opinions do not reach this minimal level of scrutiny they are of no use to the trier of fact and should not become evidence. The facts of this case demonstrate that DFS failed to understand its role.”
Ultimately, the key takeaway of the decision was succinctly stated by the Divisional Court as follows:
“A quasi-judicial tribunal is required to adhere to principles of natural justice and procedural fairness. If a tribunal like the LAT fails to accord litigants with a procedurally fair hearing, decisions rendered will be set aside. No deference is accorded to a decision that fails to accord with the principles of natural justice and procedural fairness.”
Costs
The Divisional Court fixed costs in the amount of $69,000 all inclusive.
Appellant’s counsel, both OTLA members, were Joseph Obagi and Chantelle Colangelo.
The Respondent was represented by Martin Forget and Suhasha Hewagama.
A Notice of Motion for Leave to Appeal has been filed with the Court of Appeal for Ontario.
