In the recent decision of Lockyear v. Wawanesa Mutual Insurance Company, the Divisional Court overturned a Licence Appeal Tribunal decision on the basis that it lacked procedural fairness. 

The question before the Tribunal was whether the claimant, Jeffrey Lockyear, met the criteria of catastrophic impairment on the basis of a Glasgow Coma Scale (“GCS”) score of 9 or less.  Two incident reports, prepared by a paramedic, were put before the Tribunal: the Ambulance Call Report prepared at the scene (which listed three scores of 15), and a supplementary incident report prepared in response to a letter from Mr. Lockyear’s counsel (which listed an initial score of 8).  The Tribunal rejected the supplemental incident report, and found that “the alleged GCS of 8/15 was never initiated at the time of the accident.”  The decision was upheld on reconsideration within the LAT.  

Mr. Lockyear appealed to the Divisional Court, citing three ways in which the Tribunal’s decision lacked procedural fairness: not allowing a video to be admitted that showed the accident take place and showing Mr. Lockyer on the ground following the accident, along with the paramedic, who happened to witness the accident, attending Mr. Lockyear; permitting the insurer’s neurologist to provide commentary outside the scope of his report, specifically with respect to the “unusual” GCS score of 8; and, refusing to permit evidence in reply to the insurer’s neurologist.

Lederer J., writing for the panel (Lederer, Matheson, and Sheard, J.) specifically noted that the issue of procedural fairness, while an issue of law, “stands apart” in that it is attached to the foundational right to be heard.  The Court stated that there is no standard of review applicable to procedural fairness: “A proceeding is either fair or it is not.”

The Court ruled that refusing to admit the video (which the Tribunal did not review in the course of the hearing, and ruled was not relevant) was a denial of Mr. Lockyear’s right to be heard, and a breach of procedural fairness.  The Court stated that “the assertion that it was unclear what value the video would have, given its relevance, would stand in favour of, not against, its admission as evidence so that its probative value (its weight) could be tested.”  The Court also ruled that Mr. Lockyear’s right to procedural fairness had been breached by allowing the insurer’s neurologist to “open up a new field not mentioned in the report”, and that failing to allow reply on Mr. Lockyear’s behalf was also procedurally unfair, as it denied him the opportunity to address and reply to new evidence.  The fact that the paramedic witnessed the accident, and attended to Mr. Lockyear immediately, but the observations from those initial observances were not part of the formal ambulance call report,  but were part of the addendum report, was also a significant consideration.  The Court overturned the decision, and remitted the matter for a new hearing with a different Adjudicator.

The right to procedural fairness is one of the underpinnings of the Canadian legal system.  It ensures the right to a fair hearing.  The Court in Lockyear v. Wawanesa Mutual Insurance Company reminds us of the importance of this right, and the consequences of breaching it. 

Rebecca Greer Brown is the author of this blog and a lawyer at ZTGH. If you have a question about this decision, or you have a similar file please contact Rebecca at 647-427-3339.