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LAT hearings held in writing 'fundamental denial of justice'

Some of the first decisions from the Licence Appeal Tribunal (LAT) dealing with applications for accident benefits are reinforcing concerns that injured people aren’t getting fair access to justice under the new system, says Toronto civil litigator Darryl Singer.

Recent decisions were rendered without oral hearings, a new option since the Ontario government shifted responsibilities from the Financial Services Commission of Ontario, says Singer, principle of Singer Barristers Professional Corporation.

“These people are not being given the opportunity to come before the tribunal and have their credibility assessed, have their doctors testify and have their lawyers cross-examine the insurance company’s doctors,” Singer tells AdvocateDaily.com. “Instead, it’s all done in writing.

“There’s a fundamental denial of natural justice."

In K.P. v Aviva Canada Inc., 2016 CanLII 60727 (ON LAT), the tribunal’s vice-chairman found that the applicant suffered predominantly minor injuries and was therefore not entitled to payment for the balance of a physiotherapy treatment plan.

The applicant disclosed a number of conditions and symptoms, including tendonitis, whiplash, neck, back and hip pain.

While the above list is extensive, the difficulty faced by me is that there is no medical evidence that either ties any specific condition to the accident, or that indicates that any specific condition or symptom is anything more than a soft tissue injury or a condition arising out of a normal lifestyle that arose independent of the accident,” the vice-chairman wrote.

In 16-000080 v RBC General Insurance Company, 2016 CanLII 67138 (ON LAT), the tribunal found after a hearing in writing that the applicant was not entitled to the full treatment plan as outlined by an occupational therapist.

The insurance company argued the disputed items were actually “housekeeping and home maintenance expenses ‘dressed up’ as rehabilitation expenses,” according to the decision. In the end, the adjudicator ruled that some of the expenses should be paid for — including the installation of a handrail — while others, including a bathroom fan repair, should not.

Singer says both cases would likely have completely different outcomes if in-person hearings were held.

“We don’t know what would have happened to these people if oral hearings were held,” he says. “Perhaps they would have been successful, but we’ll never know because they weren’t given the opportunity.”

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