Executive Chair, Linda Lamoureux, released a LAT decision on May 23, 2017, reconsidering an Order denying a request for an adjournment in 16-003927 and Intact Insurance Co.
The facts were as follows: An Application for accident benefits was filed with the LAT. A companion tort action was commenced, which also named the insurer. At the LAT case conference held February 9 and 27, 2017, the matter did not settle, and it was set down for a hybrid hearing to take place on July 10 and 11, 2017.
Approximately a month later, a request for an adjournment was filed on consent, on account of the global mediation that was to take place on August 11, 2017.
The request was denied. The denial was relayed through the Tribunal Case Management Officer, who noted that the request had been considered by the Tribunal, which had determined that “the reasons provided are insufficient to grant the adjournment.”
In writing to the Tribunal, counsel asked that the Tribunal reconsider the request on account of the possible settlement that could be reached at mediation. Counsel noted that it would be a waste of the Tribunal’s time, and counsel’s time and resources to go through with the hearing. Counsel also advised that an expert witness would not be on vacation, and therefore unavailable for the scheduled hearing.
On reconsideration, the Order was varied to allow the adjournment pursuant to Rule 18.4 (b) of the Tribunal’s Rules of Practice and Procedure after the Executive Chair found that she had authority to do so pursuant to Rule 18.2 as new evidence had come to light. Under section 18.2, there are only four grounds on which to grant a reconsideration request: (a) that the Tribunal was outside its jurisdiction or violated the rules of natural justice or procedural fairness; (b) the Tribunal had made a significant error of law or fact which would have led the Tribunal to reach a different decision; (c) the Tribunal had heard false or misleading evidence which would have affected the result; or (d) new evidence which, if obtained earlier, would have affected the result.
We pause here to note that the Executive Chair cited (d) as the basis for her reconsideration, but in obiter, made commentary which drew on (a): natural justice and procedural fairness. In particular, she commented on the fact that there were no reasons given for the denial, and criticized the fact that the denial came through the case management officer, and not the Vice Chair who had made the decision. “All told, the parties do not know who rendered the decision, the basis for the decision or the competing considerations that informed the decision. This is unacceptable. While I do not go so far as to suggest that in this situation reasons are legally required, I will underscore that the interests of transparency and accountabilities should have offered the parties more.”
Where, for various reasons, parties find themselves in need of an adjournment, this Reconsideration Decision may at least temporarily provide some reassurance that they will not simply be at the mercy of an unnamed Tribunal member, without recourse to challenge a sweeping denial. “Temporarily” because proposed amendments to the Tribunal’s Rules of Practice and Procedure propose the removal of the right to seek reconsideration save for final orders. If that amendment were in place, this decision would not have been eligible for reconsideration. It is also fortuitous that “new evidence” to the effect that a witness would be on vacation at the time of the hearing came to light after the denial of the adjournment, as this seems to have been the key basis for the Executive Chair to have reconsidered the granting of the adjournment.
Most importantly, however, the additional commentary by the Executive Chair about needing to provide transparency in administrative decision making will hopefully provide Insurers and Applicants alike with more insight into the LAT’s decision-making process, and also encourage the LAT to refine, particularize, and provide reasoned correspondence to the parties.
If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222