Written By: Cierra Hurley, Student-At-Law
6 Minute Read
We recently succeeded in a motion at the Licence Appeal Tribunal (LAT) for production of the raw data and test results of the insurer’s psychologist.
The Dispute
The Respondent insurer had retained a psychologist to conduct an insurer examination of the Applicant. While the Respondent produced some records from the psychologist’s office, the production was incomplete. Notably absent were the psychologist’s raw test data, which are the underlying results from the psychological testing administered to the Applicant.
When our office requested that this raw test data be released to the Applicant’s treating neurologist, the Respondent refused. The insurer’s position was that such data should only be provided to another psychologist, citing professional standards and copyright concerns related to the test materials.
Why Raw Test Data Is Important
To understand why this matters, it helps to understand what “raw test data” actually means. When a psychologist administers a battery of tests, raw data includes the individual scores, response patterns, and performance metrics recorded during testing, before they are interpreted and packaged into a report.
Raw test data is critical for several reasons:
- Cross-examination of the expert: At a hearing, counsel must be able to challenge the reliability and validity of an expert’s conclusions. If an examiner selectively reports certain scores, uses outdated norms, or misinterprets results, raw data is the only means of exposing that. Without it, cross-examination is significantly limited. You can only probe the expert’s conclusions, not the underlying foundation.
- Independent review by the Applicant’s own experts: An Applicant is entitled to have their own experts review and respond to the insurer’s evidence. If the insurer’s psychologist administered tests but those results are withheld, the Applicant’s expert is forced to accept the insurer’s interpretation without the ability to independently assess whether the scoring was accurate or appropriately interpreted.
- Detecting errors, omissions, and bias: Psychological testing involves judgment at every stage, including selecting which tests to administer, how to score ambiguous responses, and how to weigh conflicting results. Raw data enable a reviewing expert or counsel to determine whether tests were administered consistently, whether effort was adequately assessed, and whether the overall picture presented by the examiner is accurate.
- Ensuring a fair hearing: The fundamental principle of procedural fairness requires that a party know the case against them and have a meaningful opportunity to respond. Where an insurer seeks to rely on psychological test results to deny significant benefits, withholding the data underlying those results strikes at the heart of fairness.
An Applicant who cannot access raw test data is in the position of challenging an expert’s conclusion without being permitted to look at their work, much like being asked to dispute a math answer without seeing the calculation.
The Respondent’s Position
The Respondent raised two main arguments against disclosure:
- The examiner had professional and legal obligations under the College of Psychologists and Behaviour Analysts of Ontario’s Standards of Professional Conduct (SCM) to protect raw test data from individuals who were not sufficiently trained to interpret it, and to prevent public access.
- The test questionnaires and materials were protected by copyright and could not be disclosed without the publisher’s permission.
The Respondent also argued that a specific request for raw test data had not been made at the Case Conference, suggesting the raw data fell outside the assessor’s complete file, which had been requested and ordered produced at the Case Conference.
Our Argument
We brought a motion before the LAT, arguing that the raw test data fell squarely within the scope of documents the Respondent had agreed to produce at the Case Conference. Specifically, the Case Conference Report and Order required the Respondent to provide a complete copy of all clinical notes and records from insurer examiners who assessed the Applicant in relation to the benefits in dispute, as well as a complete copy of the file from the Assessment Centre associated with the insurer examination.
Raw test data is not merely a technical formality; it is the evidentiary foundation upon which an expert’s opinions rest. Without access to it, a party cannot meaningfully challenge or cross-examine that expert at the hearing.
We further argued that the SCM, while restricting the release of test tools, questions, and proprietary materials, does not prohibit disclosure of data collected from the Applicant during testing. Critically, the SCM itself contemplates that sharing such information may be justified to comply with a legal requirement, and a Tribunal Order is precisely that.
The LAT’s Decision
The Adjudicator agreed with our position in full and granted the motion.
The LAT drew an important distinction: the SCM’s restrictions apply to the test tools, instruments, and proprietary questions themselves, not the raw data obtained from an individual during testing. The Adjudicator was not satisfied that the SCM prevented the psychologist from complying with a Tribunal Order requiring production of this data.
The LAT also confirmed that without access to raw test data, the Applicant would be deprived of the ability to meaningfully cross-examine the psychologist at the hearing, which is a fundamental right in any adversarial proceeding.
The Respondent is now required to produce the examiner’s complete file, including all raw test data.
Why This Matters
This decision has broader significance for anyone involved in an accident benefits dispute where the Applicant is seeking access to raw test data. It confirms that insurers cannot use professional standards or copyright protections as a blanket shield against disclosure. When a Tribunal orders production, that Order carries the force of a legal obligation, one that professional standards themselves acknowledge must be respected.
This decision is an important step toward greater transparency in insurer examinations and reinforces the principle that expert evidence must be open to scrutiny at every level.
If you are involved in an accident benefits dispute and an insurer has required you to attend an examination, it is critical to understand the scope of disclosure you are entitled to and take steps to ensure it is provided.
Our office regularly assists clients with accident benefits disputes and insurer examination issues and is available to provide guidance where needed. Contact us today for a free consultation.
