By: Lindsay Charles, Partner and Emma Funston-Clarke, Summer Student
Introduction
Since the Licence Appeal Tribunal (“LAT” or “the Tribunal”) took over AB disputes in 2017, the average time from application to decision has steadily increased. By the first quarter of the 2020 – 2021 fiscal year, the average number of days between a LAT application and decision was 505 days. This number climbed to an average of 540 days by quarter one the following year. By November 2023, the average time between application and decision was 854 days.
This mounting delay has direct and detrimental effects on access to treatment and benefits. It became increasingly clear that LAT procedures needed to be amended to address delays and streamline the process.
In July 2023, the LAT revised its rules and procedures to expedite dispute resolution. The amended rules require parties to produce documents and exchange information regarding experts well in advance of the hearing. Additionally, the amended rules broaden the LAT’s powers for parties failing to comply.
The new rules fall into two categories:
- Category 1 – Updated and New Rules that apply as of August 21, 2023, and
- Category 2 – Updated Rules that apply based on Date of Application and the First Notice of Case Conference.
Under Category 2, the updated rules apply if the appeal was filed on or after August 21, 2023, or the first Notice of Case Conference for the appeal was issued on or After August 21, 2023.
Overview of Category 2 Rules Regarding LAT-AABS Applications
The updated Rules in the second category are:
- Rule 9 (Document Exchange, Production Orders, Witness Lists & Hearing Briefs)
- Rule 10 (Expert Witnesses)
- Rule 14 (Case Conferences)
- Rule 20 (Automobile Accident Benefit Service Claims)
Rule 9 (Document Exchange, Production Orders, Witness Lists & Hearing Briefs)
Rule 9 outlines the obligations of the parties regarding disclosure and production. For the Automobile Accident Benefits Service (“AABS”), the new rules mean earlier and firmer deadlines for disclosure, requiring Accident Benefits Clerks and Coordinators to work up their file quickly. Some notable changes to this rule include:
Rule 9.2: Production Orders by the Tribunal
Under the old Rules (Rule 9.3), a party could seek an order from the Tribunal at any stage of the proceeding requiring a party to disclose and/or produce every and any document or thing they intend to present as evidence at the hearing.
The amended Rule 9.2 requires that a party make reasonable efforts to obtain the document or thing without a production order. Further, Rule 9.2.1 states that the Tribunal will not make an order for the production of any document or thing not relevant to the issues in dispute that are unduly repetitious.
Under the new rules, the Tribunal’s role is more defined. Instead of turning to the Tribunal for a production order as a first step, the new rules shift the responsibility to the party to make reasonable efforts to obtain the document or thing without a production order. While placing more responsibility on the parties, this change is also an effort on behalf of the Tribunal to alleviate some of the backlog and free up time for more substantive issues.
Rule 9.3: Failure to Comply with the Rules
Further, the new rules allow parties who fail to comply with disclosure rules to make submissions before the Tribunal determines if the document or things can be used at the hearing, if the witness may testify, or whether any other order is required. It also outlines the relevant factors the Tribunal may consider when making a determination. These factors include:
- The reason for non-compliance with the Rules
- If allowing the evidence to be heard causes prejudice to the other party and whether that prejudice can be mitigated
- The extent that the information/testimony is known to the other party
- The position of the other party (i.e., oppose vs. consent)
- The relevance of the document, thing, or testimony to an issue in dispute
The application of Rule 9 is exemplified in Huber vs. Allstate Insurance Company of Canada, 2024 ONLAT 22-003147/AABS. The applicant submitted an OCF-18 to the respondent insurer on November 9, 2020, requesting approval of psychological services. The respondent denied this request on December 1, 2020. The applicant submitted that the assessment was in-depth and contained detailed pre-screening outlining her physical and psychological issues. She argued that the findings of Dr. Langis confirmed the need for 12 sessions of cognitive behavioural therapy, a neuropsychological assessment, and a driving evaluation assessment.
The respondent argued that the evidence of the applicant is an attempt at “trial by ambush” as the applicant failed to provide medical records in accordance with the Case Conference Report and Order (“CCRO”). The respondent claimed that this failure prejudiced them and should, therefore, lead to the exclusion of the evidence.
Upon review, the adjudicator found that the CCRO indicated that “the respondent did not have any production requests for the applicant.” Rather than “trial by ambush,” the respondent was aware of the assessment yet made no request for the production of documents pursuant to Rule 9.2.1.
Rule 9.3 allows the Tribunal to admit evidence if the party fails to comply with the disclosure requirements. The adjudicator found that the assessment and treatment plan were known to the respondent, the applicant did not oppose the disclosure of the plan, any other order can mitigate any prejudice to the respondent, and that the plan is relevant to the issues in dispute. Ultimately, the treatment and assessment plan were allowed as evidence, and the respondent paid the applicant for medical and rehabilitation expenses.
Rule 9.4 Deadlines for Document Exchange and Filing (AABS)
The new Rules require earlier and firmer deadlines for document exchange between the parties and filing materials with the Tribunal.
Document Exchange (Rule 9.4.2) – no later than 45 days before the hearing, parties must exchange the following:
- All documents and things the parties intend to rely on as evidence (unless an earlier date is set by the Tribunal)
- (For electronic and in-person hearings) A list of witnesses each party intends to call and a summary of the evidence each expert will give at the hearing
Filing with the Tribunal (Rule 9.4.3) – no later than 21 days before an electronic or in-person hearing, each party must file with the Tribunal and serve on the other party:
- A list of witnesses the party will call to give evidence
- A summary of the evidence each witness will give with the anticipated amount of time needed for the witness to testify
- A tabbed, indexed, and consecutively page numbered PDF copy of the evidence and authority brief, which contains only the evidence and authorities the party intends to rely on
- A completed form for electronic and in-person hearings
Should materials be filed late, the Tribunal will consider them as a preliminary issue before the hearing. The parties can make submissions before the Tribunal determines whether the documents or things can be used at the hearing, whether witness(es) may testify, and whether the matter requires any other order (Rule 9.4.4).
Rule 10: Expert Witnesses
The pattern of earlier and firmer deadlines repeats itself in the amended Rule 10. Disclosure required by Rule 10.2 must be made at least 45 days before the hearing, whereas deadlines in the old Rules were either 20 or 30 days. Further, any challenge a party wishes to make regarding an expert’s qualifications, reports, and/or statements must be made no later than 21 days before the hearing and filed with the Tribunal.
Rule 14: Case Conferences
Revisions to Rule 14 have made a party’s non-attendance at a case conference more serious. If a party who has been given notice does not attend their case conference within 10 minutes of the scheduled start time, the Tribunal will consider the reasons for non-attendance and may:
- Proceed in the absence of that party; and/or
- Make any order it considers appropriate in the circumstances
Rule 20 – Automobile Accident Benefit Service (AABS) Claims
What is most notable about the amendments to Rule 20 is the potential consequences of not complying with the Rule requiring parties to file a case conference summary. If a party does not file a case conference summary in compliance with this Rule, the Tribunal will consider the party’s non-compliance when:
- Making orders and directions under Rule 14.1; and
- When considering motions for productions under Rule 9 filed by the party after the case conference
Conclusion
Hearings for disputes subject to the new rules began in January 2024. As issues are expected while the Tribunal and parties work through the changes, it remains to be seen whether the new Rules bring the average wait time between application and decision back to a more palatable number.
These changes can be challenging to navigate. This is why having an experienced and skilled Accident Benefits Clerk working to resolve your disputes is important to your success at the LAT. If you have been injured due to someone else’s negligence and have questions about your accident benefits, contact our office to discuss your questions with one of our experienced Accident Benefits Clerks.
