The tribunal refused to allow cross-examination of expert whose reports were key evidence
The Ontario Superior Court of Justice has set aside the Licence Appeal Tribunal's (LAT) decisions in an accident benefits dispute, citing procedural unfairness in the tribunal's handling of the case.
Since 2016, the LAT has held exclusive jurisdiction under s. 280 of the Insurance Act to resolve accident benefits disputes between insurers and claimants.
The issue in Plante v. Economical Insurance Company, 2024 ONSC 7171 involved a person who claimed that injuries from a motor vehicle accident exacerbated existing disabilities and caused new impairments, including mild traumatic brain injury, chronic pain, and psychological conditions. Initially, the insurer had approved the claimant's benefits but later terminated them following assessments by medical experts. The claimant contested the termination before the tribunal, seeking coverage for attendant care, specialized equipment, home modifications, and other expenses.
The tribunal partially upheld the claim, granting limited benefits but denying others, including attendant care and home modifications. The tribunal dismissed a subsequent request for reconsideration. On appeal, the Superior Court ruled that the process was procedurally unfair, rendering the tribunal's decisions invalid.
The court found that the tribunal's adjudicator unilaterally changed the structure of the hearing without proper notice or consultation. The prehearing endorsement allocated 20 days for the case, but the adjudicator reduced it to five days at the start of the hearing. This abrupt reduction forced the claimant to shorten their witness list and revise their case strategy with little time to prepare.
The Superior Court also found that the tribunal further undermined the claimant's right to procedural fairness by refusing to allow cross-examining an expert whose reports were key evidence. The court noted that the reports contained inconsistencies, with earlier versions indicating a greater level of dependency caused by the accident and later versions suggesting no change. The tribunal refused requests to make the expert available for questioning and instead relied on testimony from a representative of the assessment company. The court held that only the expert could adequately explain the discrepancies in the reports.
The court emphasized that litigants are entitled to know the case they must meet and to challenge the evidence presented against them. Denying the opportunity to cross-examine a key witness deprived the claimant of a fundamental right to test the reliability of the evidence.
The court also expressed concerns about the role of the assessment company in preparing expert reports. It criticized the company's apparent substantive influence on the reports, which raised questions about the independence of the expert's opinion. The court noted that the independence and objectivity of experts are essential in any adjudicative process.
The court emphasized that the LAT, as a specialized tribunal, is in the best position to choose procedural options that balance cost-effectiveness, efficiency, and the rights of all parties to participate fully. However, it must fundamentally ensure procedural fairness for everyone involved. Ultimately, the court ordered a new hearing to ensure the claimant had a fair opportunity to present their case.
