Procedural Fairness in LAT Proceedings

Find out about some examples where an insurance company failed to meet the minimal requirements of fairness

Lockyear v. Wawanesa Mutual Insurance Company[1] is a recent case where an appeal to the Superior Court of Justice, from a decision of the License Appeal Tribunal (LAT) rejecting the insured’s application to be designated as catastrophically impaired, was granted on the basis that the LAT hearing and reconsideration breached the duty of procedural fairness.

Procedural fairness is recognized by the courts as a central principle of Canadian administrative law. Procedural fairness refers to the right to be heard, for someone to participate meaningfully in administrative processes that affect their rights and interests. The content of procedural fairness varies depending on the administrative setting.

The facts of this case are as follows. The insured, JL, was struck by a car while riding his bike and was severely injured. He struck his head on the ground and lost consciousness. AD, a paramedic, was in the vicinity and witnessed the accident and was the first to attend to JL and render medical assistance. Following the accident, various Glasgow Coma Scale (GCS) scores were determined all being 15. These scores were reported in the Ambulance Call Report. AD had actually assessed JL’s GCS score before these three readings and determined a score of 8. Three months afterwards, he prepared a Supplemental Incident Report indicating that JL’s GCS score was 8 close to the time of the accident.

The expert reports in this case were as follows. Dr. KM, a neurologist, prepared the Application for a Determination of Catastrophic Impairment on JL’s behalf. He noted that the initial GCS score at the scene of the accident was 8. (According to the version of the Statutory Accident Benefits Schedule that was in effect at the time, this meant that JL had been catastrophically impaired which includes having a GCS score of less than 9). Dr. KM also delivered a report that supported a designation of catastrophic impairment based on interviews with JL and analysis of his post concussive symptoms. Wawanesa retained its own expert, Dr. SE, who agreed that JL had sustained a brain impairment but opined that it had not been demonstrated that he was, as a result, catastrophically impaired. He emphasized that the Ambulance Call Report revealed three GCS scores of 15, that it did not include the score of 8 and that it was signed by both paramedics. Wawanesa denied JL’s application.

JL appealed Wawanesa’s refusal to the LAT which dismissed his appeal both in first instance and on reconsideration. AD’s testimony at the LAT hearing was deemed not credible on the basis that he had no believable explanation why he remembered the GCS score of 8 three months after the incident when he had not taken any contemporaneous notes. The LAT concluded that AD had never conducted a GCS assessment at the time of the accident.

JL appealed the LAT’s decision to the Superior Court of Justice (SCJ) on the basis that the LAT had committed an error of law in making three procedural determinations that demonstrate that the proceeding lacked the fairness the law requires:

• Refusing to admit a video of the accident into evidence;
• Permitting testimonial evidence by Dr. SE that went outside the scope of his written report;
• Refusing to allow JL to call Dr. KM to give reply evidence to Dr. SE’s new evidence

With regards to (1), some months before the hearing, the Toronto Police gave a security video from a nearby gas station to counsel for JL that showed the accident and the paramedic AD attending to JL. At the outset of the LAT hearing, counsel for Wawanesa moved to exclude the video on the basis that it was silent and therefore could not speak to whether JL’s GCS score was 9 or less. The LAT did not review the video. It relied on the submissions of counsel and determined that the video was not relevant. On reconsideration, the LAT stated that the video would not have been probative of the ultimate issue.

With regards to (2), the rules of the LAT prescribe that an expert witness is required to set out any conclusions to be given in evidence and the basis for those conclusions in a signed report in advance of the hearing. The conclusions noted in Dr. SE’s report included the different GCS scores, that the discrepancy was difficult to reconcile without having contemporaneous notes from the paramedic and that there was insufficient evidence that JL had been catastrophically impaired. In testifying, Dr. SE provided an analysis that was not raised in his report.[2] Dr. SE commented that it would be unusual for someone to have enough brainpower to make noises and motor movements but not be able to simply open their eyes. Counsel for JL had objected but the evidence was allowed in.

With regards to (3), JL’s counsel had requested to call Dr. KM to give reply evidence to Dr. SE’s evidence that the combination of AD’s GCS scores were “highly unusual”; however, the LAT refused to allow a reply. On reconsideration, the LAT confirmed its view that there was no need for a reply.

The issue before the SCJ was: Did a breach of the duty of procedural fairness occur in the LAT proceedings? The standard of review for procedural fairness is absolute: Either a proceeding is fair or it is not. If it was not, the decision must be rendered invalid.

The SCJ quashed the LAT decision and remitted JL’s application back to the LAT to be redetermined by a different adjudicator. The above-noted procedural determinations by the LAT resulted in procedural unfairness. The SCJ’s reasons in support of this conclusions are as follows.

Concerning (1), the procedural law of LAT hearings is such that an adjudicator may admit evidence that is relevant to the subject-matter of the proceeding. This point is, as a matter of statutory interpretation, to be given a fair, large and liberal interpretation. The LAT’s reasoning that because the video is silent it is incapable of confirming a GCS score of 8 is a narrow and restrictive, not a large and liberal, interpretation of the evidence rule. The reconsideration also misidentified probative value and relevance, which are different. Relevance refers to the connection needed between the evidence and the questions at issue. Probative value (aka weight), on the other hand, is the significance or importance relevant evidence may have. The video, which represents the accident and immediate medical attention, is clearly relevant; and its probative value can only be determined by the opinion of a qualified expert who viewed the video. Dr. KM had opined that the video contained irrefutable proof that JL’s GCS score was less than 9. The video could have clarified whether AD had in fact conducted a GCS assessment.

Concerning (2), the procedural rule for expert reports in LAT proceedings is that experts must provide a report in advance of the hearing, that they can amplify in testimony on matters touched on in the report but that they cannot open up a new field not mentioned in the report. The purpose of this rule is to allow parties to properly prepare for the hearing and to avoid trial by surprise. The SCJ found that Dr. SE’s testimony about AD’s sub-scores went beyond the four corners of his written report. This breach of the expert report rule could have been remedied by an adjournment, which would have permitted JL’s counsel to prepare for cross-examination on this point, or by allowing JL to call reply evidence.

Concerning (3), JL’s counsel should have been allowed to call Dr. KM to give reply evidence.

For these three reasons, JL’s LAT hearing was found to have lacked procedural fairness.

[1] [2022] O.J. No. 107 (QL)

[2] To understand Dr. SE’s testimony on this point, it is useful to know that a GCS score is based on three sub-scores on observed eye response, verbal response and motor response. AD’s sub-scores in his Supplementary Incident Report outlined the sub-scores as: eye response – 1, verbal response – 2 and motor response – 3.