Preparing for the Licence Appeal Tribunal (LAT) Hearing: Considerations of the Applicant

Posted April 12, 2017

Prior to commencing a LAT hearing, Applicants should consider the following:

KNOW THE LAW

The LAT is not bound by any of the precedent established by FSCO. This is especially troubling because it has taken years to interpret some of the language of the SABS and that history has provided some amount of certainty to Applicants and to Insurers about how to interpret the SABS.

Further, very few FSCO Arbitrators (only 2 or 3 at last count) have been appointed to the LAT. This creates further uncertainty – at least in the short term – because disputes will be heard by individuals without experience or training in the complex auto accident benefits regime. Although the LAT is not a new tribunal, it has not historically dealt with insurance matters. The LAT adjudicates matters in a variety of areas including alcohol and gaming regulation, motor vehicle impoundments and driver’s licences, new home warranties, consumer protection, regulation of various occupations and business, etc. Only as of April 1, 2016, has the LAT adjudicated matters in relation to automobile insurance Statutory Accident Benefits Schedule (SABS) disputes.

Despite the fact that the LAT is not bound by FSCO decisions – it is important to know the FSCO decisions that deal with the issue in your case. Although the FSCO decisions are not binding, they have been considered persuasive in LAT decisions to date.

LAT decisions are available from CanLII (The Canadian Legal Information Institute). To date, there are approximately 60 released decisions.

KNOW THE RULES

The Rules of the Tribunal (Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016) are made pursuant to s.25.1 of the Statutory Powers Procedure Act and also pursuant to s.6 of the Licence Appeal Tribunal Act, 1999.

The Rules should be read and understood together with the Statutory Powers Procedure Act and the SABS.

If there is a conflict between the Rules and any statute or regulation, the provisions of the statute or regulation prevail.

Rule 3.1 provides that the Rules are to be liberally interpreted and applied and may be varied or applied to facilitate a fair, open and accessible process and to allow effective participation by all parties and ensure efficient, proportional and timely resolution of the merits of the proceeding. This Rule may prove to be important in circumstances where technical compliance with the Rules is not achieved but is nevertheless appropriate in the circumstances.

BE COGNIZANT OF THE SHORT TIMELINES

Timelines in the LAT are quite short, once an Application has been submitted. There is a slight strategic advantage to Applicants because they have two years from the date of the benefit denial to make an Application and therefore have time to get themselves organized before the strict timelines of the LAT apply. Insurer/Respondents will have much less time to review the file and determine the strengths and weaknesses of the dispute. Applicants should, therefore, be well prepared before submitting an Application.

There are only 60 days from the date of the case conference to the date of the LAT hearing.

There is mandatory disclosure (Rule 9.2) of the existence of every document and anything else the party intends to present as evidence at the hearing; a list of witnesses the party may call to give evidence and a description of the anticipated testimony; and a copy of all documents, consecutively numbered at least 10 days before the hearing.

If you require a recording of the hearing; a request must be made to the Tribunal at least 14 days in advance of the hearing.

Read the full article written by personal injury lawyer Wendy Moore Mandel: Preparing for the Licence Appeal Tribunal (LAT) Hearing: Considerations of the Applicant

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