First LAT Appeal to the Divisional Court Applies the Reasonableness Standard of Review to a MIG Determination by Evan Argentino

Jul 05, 2017

Liu v The Co-operators General insurance Company is the first appeal of a LAT decision to the Divisional Court. One of the most critical and anxiously awaited determinations was what standard of review would be applied to a tribunal that hears appeals from a number of varied sectors and pursuant to disparate acts, especially where the LAT is brand new to hearing auto cases.  How much deference is owed to such a tribunal?   The court applied the reasonableness standard and found that the adjudicator’s decision in regards to the application of the MIG test to the facts fell within a range of possible acceptable outcomes. 

This case has important implications generally for the standard of review for LAT decisions and more specifically on review of an adjudicators’ application of the MIG test.

This case was one of mixed fact and law.  The Divisional Court panel did not engage with a lengthy discussion regarding the standard of review. It is therefore unclear whether another panel would be open to hearing about concerns respecting the level of expertise the LAT has, and how deferential it should be respecting LAT decisions.

After quickly deciding the standard of review, the Divisional Court reviewed the reasons and findings of the adjudicator.  The Divisional Court found that the adjudicator correctly identified and applied the MIG test.  The adjudicator held that the onus was on the appellant to prove on a balance of probabilities that his injuries did not fall within the MIG and he had to prove that the accident directly caused the impairment.

The court then reviewed the application of the MIG test to the facts.  The adjudicator found that the appellant failed to prove that his injuries fell outside of the MIG.  This decision was grounded in the fact that the adjudicator decided to rely on two expert reports whilst assigning less weight to numerous others since the appellant supplied contradictory answers to basic information as to whether he was employed prior to the accident.  The Divisional Court held that this holding fell within a range of possible acceptable outcomes available to the adjudicator.

Evan Argentino is a summer student at ZTGH, if you have a question about a possible LAT appeal, please contact Eric Grossman.