Toronto Injury Lawyer Blog
Most people aren’t familiar with how car insurance disputes work until they have to go through the process.
Most would think that if there’s a dispute for benefits, they can sue the insurer which is denying those benefits and then a Judge can decide. That seems simple and straight forward. Unfortunately, simple and straight forward is not the way which car accident cases work in Ontario.
Long ago, accident victims had the right to sue the insurance company which was denying their accident benefits following a car accident. That case could be heard by a Judge, in regular Court. The court date however would only trigger if the parties had attempted and failed a mediation at the Financial Services Commission of Ontario (FSCO). That way, the parties gave it an honest try to see if they could resolve their dispute at mediation, without the need for litigation in Court. This made a lot of sense, and was easy for unsophisticated and inexperienced litigants to understand.
But the rights of accident victims to sue over denied accident benefits following a car accident were stripped from everyone in Ontario. Yes: imagine that. In a democracy, the government took away your right to sue, and access to the Courts.
Instead, innocent accident victims were required to have their disputes heard at the License Appeals Tribunal (LAT). The LAT is not a Court. It’s a tribunal. There are no Judges at the LAT. Instead, there are adjudicators who work there, who may, or may not, have any experience hearing or ruling on car accident cases. The barrier to entry to become an adjudicator at the LAT is much lower than the barrier to entry to become a Judge of the Ontario Superior Court of Justice.
Since the LAT became the ruling body over accident benefit disputes, it’s been an unfriendly place to accident victims (likely by design), and surrounded with controversy. It’s a really strange place.
Let’s start with some stats which have been highlighted by the Ontario Trial Lawyers Association:
In 2017, the success rate for applicants stood at 33%. However, by 2023, this figure had declined to just 10%. That’s a really low figure. It means that 90% of the time since 2023, applicants don’t win when they take their case all the way through the LAT to a hearing. It really makes you wonder.
Perhaps this may shed some light as to what’s going on at the LAT:
Aviva Insurance (Aviva) hired government adjudicator Thérèse Reilly while she was still employed with the Tribunal. Reilly accepted a position with Aviva in June 2022 but continued working at the LAT until November 2022. During this period, she rendered over ten decisions, all favoring insurance companies, including Aviva.
Here is what the LAT had to say about this on a reconsideration hearing involving one of her decisions where Aviva was the insurer:
“I find that the former adjudicator violated procedural fairness in this matter. The former adjudicator undertook to release a decision in a matter involving her future employer. While the hearing took place prior to the interview date, and offer date, the decision was released several months after she had accepted an offer of employment in June 2022 with the Respondent. The facts were known to her and never shared with the parties, myself as the Associate Chair of the Tribunal or Tribunals Ontario’s Ethics Executive. The relationship between the former adjudicator and Respondent/employer is sufficient to find a perception of bias.
My reasons above only apply to Aviva/Aviva owned companies, and not more broadly to any decision in favour of an insurer made by the former adjudicator post-May 2022. The relationship was between the former adjudicator and Aviva. There is nothing before me that would lead me to conclude that the former adjudicator was influenced on other matters. I see no reason to disturb decisions in which the former adjudicator conducted hearings with other insurers, and for certainty, do not see any reasons to disturb decisions of other respondents.”
To only call this a “perception of bias” is being rather kind. This is what I would call bias. There were many safeguards in place to ensure that adjudicators do their jobs properly. The former adjudicator was first appointed in 2016. As part of her appointment, she was required to swear an oath to uphold the duties as a public servant including ethical duties. In addition to the oath swearing, the former adjudicator participated in the Conflict of Interest training. Finally, the former adjudicator executed the Code of Conduct during her appointment. Adjudicators bear the onus to adhere to these duties and obligations. Flat out, not only did she not do her job, she called into question the impartiality of then LAT.
Where there’s smoke, there’s fire. Recently a 30.10 Third Party records decision on a motion was released. The motion was for production of records held by the LAT which include the adjudicators’ notes and draft decisions and more than 400 emails between adjudicators, counsel and staff for one hearing. The records are being sought for the Applicant’s case which alleges that, amongst other things, the LAT did not comply with the rules of natural justice when administering her applications.
Here’s the smoke in this case:
Two successive executive chairs of the LAT directly intervened three times in Plaintiff’s applications to the LAT: first, to recuse a three-person panel for the appearance of bias; then, to recuse a panel member because she had been on the first three-person panel; and, most recently, to personally complain about plaintiff’s counsel to the Law Society of Ontario.
At the end of the motion, a Judge of the Ontario Superior Court ordered that the LAT was required to produce a number of documents over to the Plaintiff which they had failed to produce before.
And if it doesn’t get any stranger, here’s a decision which blows my mind.
The Applicant brought a CAT hearing at the LAT. The Applicant is seeking an adjournment of that hearing because her relationship with her lawyer broke down. The respondent insurer consented to the adjournment. But, the LAT didn’t allow the adjournment despite the fact that both parties consent to the hearing getting adjourned and dismissed the Applicant’s case! The Applicant then needed to bring an appeal outside of the LAT (before a panel of three judges at the Divisional Court), in order to get the adjournment.
Does the LAT seem like a friendly and welcoming place for accident victims? Isn’t this all rather strange.
