News Update – January 14, 2022

Procedural Fairness Missteps Render Decision Invalid

In Breaking News the Division Court ruled that the LAT failed to ensure procedural fairness in three separate determinations involving a pre-June 1 2016 CAT determination on a brain impairment.

The court made clear “the standard of review applicable to procedural fairness is absolute. A proceeding is either fair or it is not” – in concluding that the Tribunal is to rehear the evidence in Lockyear v Wawanesa.

Procedural Fairness Missing in Action – In Lockyear v Wawanesa the Applicant Lockyear appealed a Tribunal decision, upheld upon reconsideration, that he did not suffer a catastrophic impairment as a result of injuries sustained in an August 2015 accident. At issue was whether he sustained a brain impairment that resulted in a score of 9 or less on the Glasgow Coma Scale (GCS).

The Ambulance Call Report recorded three GCS scores, each with a reading of 15. However, counsel for Lockyear sought and received a supplemental Incident report in November 2015 from the paramedic first at the scene (Drew) in which he indicated that immediately upon arriving at the scene he recorded a GCS score of 8.

Ultimately, the Tribunal at first instance and upon reconsideration determined that the report indicating the lower score was not credible, choosing to rely upon the initial report that was signed off by both paramedics at the scene.

On appeal, the Court confirmed that the matter “turned on the consideration of the Glasgow Coma Scale score of 8 that was said to have been undertaken and determined immediately upon the arrival of the paramedics on the scene. This remained the central issue.”

The Court noted that the substance of the appeal were three procedural determinations that resulted in the proceedings lacking the fairness the law required:

(i) refusing to admit a video of the accident into evidence;
(ii) permitting evidence of Dr. Sherali Esmail outside or beyond his report; and,
(iii) refusing to allow reply evidence in response to Dr. Sherali  Esmail.

In terms of the standard of review, the Court confirmed that “Procedural fairness is attached to a foundational right, a principle of natural justice, the right to be heard.” The standard of review “applicable to procedural fairness is absolute. A proceeding is either fair or it is not”. The right to a fair hearing is to be regarded as an “independent unqualified right”. Therefore, “the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision.”

The video that was excluded from evidence showed the accident and the paramedic Drew attending to Lockyear. The Tribunal found that the video ultimately had no relevance to the issue of whether the applicant suffered a catastrophic impairment, and “would not have been probative of the “ultimate issue.”

The Court however found that this determination was “narrow and restrictive”, not providing for the required “ fair, large and liberal interpretation”. In contrast to the ruling of the Tribunal, the Court found rather that “What happened over those moments is clearly relevant. To my mind, its probative value could only properly be assessed, once viewed and commented on by those who were present or otherwise qualified, presumably by some established expertise, to do so”. The refusal to admit the video was therefore a “denial of the right of Jeffrey Lockyear to be heard and a breach of procedural fairness.” As the Court put it “if a picture is worth a thousand words, how many words is an appropriately described video worth?”

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Regarding the insurer’s expert having provided evidence outside of his report, the Court noted the general policy rationale was indicated as ensuring that the opposing party is not taken by surprise. The testimony regarding what was said to have been unusual scores in the November 2015 incident report, nowhere referenced in his report, resulted in the expert having “stepped outside his own report and offered an opinion that counsel for Wawanesa should have foreseen would surprise the other side.” Noting that the issue was first raised within the appeal, the Court confirmed “I would, if I were required to, find that the evidence of Dr. Sherali Esmail offered an opinion that went beyond what was in his report and opened a new field. In so doing it was in breach of procedural fairness.”

Lastly, the Court considered the failure to allow for reply evidence in regard to the newly proffered opinion of Esmail. It was confirmed that the “right to recall reply evidence is, as a general proposition intrinsic to adversarial proceedings in Ontario.” The Court found that the Tribunal, having allowed in new evidence, “rather than attempting to meet the concern, compounded the problem leading to procedural unfairness when it refused to allow Dr. Keith Meloff to provide evidence in reply.”

In the end, “Dr. Sherali Esmail’s evidence went uncontradicted and was relied on by the Licence Appeal Tribunal in finding the initial Glasgow Coma Scale test score of 8/15 was inaccurate. It was procedurally unfair to deny Jeffrey Lockyear an equal opportunity to address and reply to this new evidence.”

Therefore, the Court ordered the matter be remitted to the Tribunal for a new hearing, conducted by a different adjudicator. Costs were payable in the sum of $7500 from Wawanesa to Lockyear.

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