Since the writing of this blog the decision has not been overturned – SCC refused leave to appeal.
In Y.C. and State Farm Mutual Automobile Insurance Company, (Adjudicator Terry Hunter, May 9, 2017) , the claimant disputed a denial of income replacement benefits by the insurer. An Application was brought to the LAT. At the case conference, the claimant advised that (s)he was seeking to have an updated report obtained with respect to psychological injuries sustained. The initial report was authored by a psychologist for the tort claim that the claimant was advancing. The initial report did not speak specifically to the test that is applied with respect to pre-104 week income replacement benefits pursuant to the Schedule.
The insurer objected to the late admission of a new report, as the insurer’s own experts would not be able to assess Y.C. and comment on the new report in time for the upcoming hearing. The insurer brought a motion to exclude the report from admission at the hearing.
Adjudicator Hunter opined that it was integral to balance the claimant’s right to present her case with the insurers right to procedural fairness. Where the insurer’s expert would not be able to comment on the new report, having not assessed Y.C. in over two years, Adjudicator Hunter determined that the most fair option was to briefly adjourn the hearing to allow the insurer expert to conduct an in-person assessment. That way, both experts would be able to provide a fulsome evaluation and opinion that would aid the hearing Adjudicator in making their determination.
Some insurers may be concerned that this tactic will be employed by claimant to create a “back door” adjournment that the Applicant could not otherwise seek. However, the report, if relevant, will not be excluded due to the nature of the LAT rules of evidence. A short adjournment to allow a section 44 assessment can be permitted however to allow the insurer to obtain up-to-date reports to address any new evidence. The short adjournment is not in and of itself prejudicial, and in fact serves to allow a more even playing field. Early returns from the LAT suggested that the fixation with immediate hearing scheduling without adjournments put a very high emphasis on timing of hearings without regard to procedural fairness. This case suggests that at least one adjudicator is attuned to these fairness concerns, and that is a positive first step in the right direction.