Volume. 5 Issue. 18 – April 28, 2021
The Divisional Court once again weighs in on its jurisdiction and role concerning decisions rendered by the Tribunal. Reinforcing the broad remedial powers of the LAT, the Court ruled against a concurrent appeal and judicial review on a decision that had been reconsidered by the original hearing adjudicator. Further to a recent Court decision, this is the second case where the Court asserted strong language on its role in LAT matters.
In an interesting set of facts involving a heart attack, brain injury and a minor accident, the Tribunal considers whether the accident caused the acquired brain injury.
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The Court Dismisses Concurrent Appeal and Judicial Review
Concurrent Appeal/Judicial Review Dismissals – In Yatar v TD Insurance (18-002397), Ms. Yatar sought to concurrently appeal and judicially review a decision of the Tribunal, that had been confirmed upon own Reconsideration. At issue was whether a 2011 denial letter had triggered the two year limitation period. The issues were framed as “On the statutory appeal, did the LAT err in law in finding that the appellant’s claims are barred because of a limitation period? (and) If there is no error in law, and the appeal is dismissed, should this court exercise its discretion to hear the judicial review application?”
Dismissing the appeal, it was noted that the Notice of Appeal simply “recites findings of fact made by the adjudicator and then baldly asserts that the adjudicator erred in law, without identifying the legal error or any extricable legal principle.”
Turning then to the judicial review, the Court cited the need to “give weight to the legislative intent to limit this court’s review of LAT decisions on statutory accident benefits to questions of law only, and to allow LAT to ‘function with a minimum of judicial interference’.” Further consideration was given to the “breadth of LAT’s reconsideration power, which includes errors of fact or law likely to affect the result.” To that end, “there has already been one level of review of the LAT decision by a decision-maker with broad remedial powers.”
The Court then noted that the alleged errors were questions of fact or mixed fact and law involving the assessment of evidence. Given same, a “reviewing court will be highly deferential to the administrative decision maker on these issues.” In addition, the Courts historically have made clear “the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review.” Concluding, the Court found that “judicial review of a LAT SABS decision is only available, if at all, in exceptional circumstances.” Given the absence of extraordinary circumstances that would justify an exercise of discretion to judicially review the matter at hand, the judicial review was also dismissed, with costs awarded to TD in the amount of $7500 inclusive.
“Mountain of Evidence” Against Causation
“Acquired” Brain Injury? – In Perri v Certas (20-001998), Perri was involved in a single vehicle collision after suffering a cardiac arrest and striking a utility pole. There was “seemingly no dispute that the applicant has sustained a brain injury”. At issue, however, was whether the nature of the brain injury was traumatic and as a result of the accident. This was in context of the accident having been relatively minor and Perri having significant pre-existing medical conditions. Ultimately, the Tribunal determined that there was a “mountain of evidence” that the impairments related to the brain injury were not related to the accident.
Reference was made to an angiogram that determined the cardiac arrest itself was “likely caused by a distal right coronary artery (RCA), of 99% stenosis. The Cardiac Diagnostic Summary referred to the stenosis as ‘the culprit’.” The Tribunal confirmed that the brain injury “was in fact due to a lack of blood flow and oxygen, intubation and complications resulting from the cardiac arrest, thereby leading to an anoxic brain injury.” It was therefore “clear that the applicant’s acquired brain injury flowed from his coronary artery disease and cardiac arrest on that day and that the minor impact from the accident did not cause his impairments.”
Related LAT inFORMER issues:
Court Not Amused With S.44 Roadblocks
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