The Divisional Court allowed an appeal from a decision of the LAT, finding that the Tribunal’s decision was procedurally unfair
In Shahin v. Intact Insurance,the Divisional Court recently overturned a Licence Appeal Tribunal (LAT) decision, remitting the matter back to the Tribunal for a fresh a hearing to allow the appellant / applicant to seek to prove that she sustained a catastrophic impairment. The applicant alleged that she sustained catastrophic impairments as a result of a motor vehicle collision that occurred in 2013. A panel of two adjudicators dismissed her application at the initial hearing. The applicant appealed on the basis that the hearing was procedurally unfair.
The appellant / applicant raised three issues in this appeal. The first issue involved the insurer’s neuropsychologist, Dr. West. Dr. West testified in chief, however, did not re-attend for cross-examination and the LAT did not insist that he return for cross-examination. Second, the LAT placed causation in issue when the insurer’s counsel, in their opening submissions, conceded that causation was not in issue in the matter. The case, according to the parties, was about the extent of the impairments caused by the collision. Third, while the LAT advised the parties that they would not rely upon documents that the parties did not make submissions on, the adjudicators did exactly that. The Court ultimately agreed with all three of these submissions.
An overarching issue that the Court first grappled with is the level of procedural fairness that should be afforded to applicants in catastrophic cases. The Court applied the seminal case of Baker v. Canada to determine the level of procedural fairness that ought to be afforded. The Divisional Court found that hearings where catastrophic impairment are in issue require a high level of procedural fairness.[1]
Regarding Dr. West, the Court found if Dr. West refused to attend for cross-examination, his evidence should have been disregarded and his report should have been struck from the record. The LAT improperly relied upon Dr. West’s evidence and report, which the Court found breached the applicant’s rights of procedural fairness. This decision confirms the right to cross-examine an expert as a matter of procedural fairness, where the evidence of that expert is intended to be relied upon.
The Court also found that the LAT breached procedural fairness by putting causation in issue when the insurer conceded that it was not. The dispute between the parties centered on whether or not the applicant’s impairments constituted a class 4 marked impairment, or whether they were a class 2 impairment. Only a class 4 impairment would support a finding of catastrophic impairment. The LAT failed to advise the parties that it was considering causation, and therefore the applicant was not provided any notice or opportunity to make legal or factual submissions addressing the issue. The Divisional Court found in this way, the Tribunal breached the applicant’s right to procedural fairness.
Third, the two adjudicators opened the hearing by advising the parties that any document that was not referred to during oral arguments would not be reviewed. However, in its decision, the LAT did just that. The Court found that in doing so, the LAT violated procedural fairness, violating the age-old “rule in Browne v. Dunn“, established to prevent the “ambush” of a witness by not giving the witness an opportunity to state their position on later evidence that contradicts them on an essential matter. The Court continued by unsurprisingly stating that it is an error for the LAT to rely on information that “was not in evidence, was not drawn to the parties’ attention, and which Ms. Shahin was not questioned on.”[2]
Conclusion
This is an extremely timely decision demonstrating the importance of Court oversight of the LAT, and of administrative tribunals generally. On the heels of the Supreme Court of Canada decision in Yatar, this recent Divisional Court case not only affirms the Court’s crucial role in overseeing the decisions of administrative tribunals, but also in establishing the degree of procedural fairness that must be afforded to catastrophic impairment decisions.
Read OTLA’s case summary of Shahin (21-002418) v. Intact, 2023 CanLII 13155
[1] Para 11.
[2] Para 32
