The insurer's expert was not cross-examined after a scheduling conflict arose during his testimony
The Ontario Superior Court of Justice has ruled that the hearing conducted by the Licence Appeal Tribunal regarding a claim of catastrophic impairment following a 2013 motor vehicle accident was procedurally unfair.
In Shahin v. Intact Insurance Company, 2024 ONSC 2059, Nahed Shahin appealed to the tribunal after her insurer, Intact Insurance Company, denied her claim of catastrophic impairment and associated accident benefits. Following a multi-day hearing, the LAT determined that Shahin was not catastrophically impaired, finding that the accident did not cause her mental condition or meet the level of catastrophic impairment.
The court found several instances of procedural unfairness in the tribunal's proceedings. Central to Shahin's appeal was the tribunal's reliance on evidence from Intact’s expert, a neuropsychologist, whose report denied Shahin's catastrophic status. The court noted that Intact’s expert was not cross-examined after a scheduling conflict arose during his testimony, a point the Tribunal overlooked in their decision-making process.
Additionally, the tribunal was criticized for discussing the causation issue despite both parties agreeing it was not in dispute. The adjudicators did not provide notice or seek submissions from the parties, significantly impacting the decision.
Further compounding the unfairness, the Superior Court found that the tribunal referenced documents not identified by counsel during the hearing, which Shahin had no opportunity to address. This included medical records and a job site analysis that were used to challenge her credibility and the severity of her impairment.
The court underscored the necessity of procedural fairness in such hearings, especially given the substantial financial implications for the claimant. Citing precedents on the level of procedural fairness owed, the court stressed the importance of a full and fair examination of evidence, particularly when expert testimony is involved.
Ultimately, the court ordered a fresh hearing with a new panel of adjudicators, emphasizing that the issues at stake are heavily fact-dependent and require a procedurally sound forum to ensure just outcomes.
