Volume. 5 Issue. 37- August 18, 2021

In this edition, we report on two cases that provide some practical guidance related to the procedures before the Tribunal and the Court. These cases help you understand the following issues:

1.Under what circumstances can one seek judicial review of a LAT decision?
2. Under what circumstances can one seek to file a sur-reply?

Advance your best case with for and against information. The investment is worth it! Submit your OAR request through Live Chat!

Neither Judicial Review nor Judicial Appeal Available to Applicant

Judicial Review v Judicial Appeal – The Applicant, having lost in both the original decision of the Tribunal as well as a reconsideration of same, concerning whether a failure to attend an IE precluded his appeal proceeding at the Tribunal, sought judicial review of same. The Court, in Tipping v Coseco, framed the matter as a preliminary issue as to “whether the Court should entertain the application for judicial review given that there is a statutory right of appeal from the LAT’s decisions.” The Court noted there to have been a “lengthy and convoluted dispute between Coseco and Mr. Tipping’s lawyer over the neuropsychological assessment.”

Original Decision
In the original decision, Tipping’s arguments and submissions for not attending the IE were variously found to be “bewildering”, “baseless”, “unsupportable”, and “its allegations amount to nothing more than scandalous innuendo on the affiant’s part; [Tipping’s lawyer] states plenty of ‘beliefs’ with a paucity of proof.” Further, reasons for refusing to attend were “implausible”, “devoid of merit” and “intransigen[t]”. Following the decision’s release, counsel for Tipping wrote a letter directly to the adjudicator seeking a reversal of the original decision, stipulating that “this is not a reconsideration request”.

Request for Reconsideration
Ultimately the Tribunal ruled that the letter would in fact be treated as a reconsideration request. Tipping then made further lengthy submissions “requesting a reconsideration of the decision to treat his June 26, 2019 letter as a request for a reconsideration.” The Tribunal, as earlier noted, upheld the original decision, leading to the Tipping seeking a judicial review.

Court Weighs in on Difference Between Judicial Review and Appeal
The Court confirmed, “The primary issue on this application for judicial review is whether the matter is properly brought as an application for judicial review given Mr. Tipping’s right of appeal. A secondary issue is whether, even if this matter had been brought as an appeal, the matter raises an issue of law.”

The Court confirmed that s.11(1) of the LAT Act “provides a right of appeal to the Divisional Court from a decision of the LAT”, with same restricted to a question of law, with no appeal available for a question of fact or mixed fact and law. Conversely, “judicial review is “a discretionary remedy which is not available where there is an adequate alternative remedy”. The Court in Yatar v TD Insurance has previously ruled that the court should only entertain a judicial review of a LAT decision dealing with statutory accident benefits, “if at all, in exceptional circumstances”. In the case at hand, it was agreed that the issues were matters of mixed fact and law, such that Tipping was thus not able to bring an appeal. However, this mere fact “does not give rise to exceptional circumstances”. The Court further offered that “precluding Mr. Tipping from proceeding with his application for judicial review on these issues is respectful of the legislature’s intention to limit the courts’ interference with LAT decisions to questions of law alone.”

The Court then went on to consider submissions from Tipping regarding procedural fairness and natural justice, including allegations of bias. These, as questions of law, present an opportunity for appeal, however the Court noted that these issues appeared to have no merit. Further, were Tipping to pursue this remedy, he would face an additional issue, being the fact that “the appeal is premature on the basis that the LAT’s order is not a final order.” In this case, Tipping “can proceed with his application to the LAT if he complies with Coseco’s request that he participate in a neuropsychological examination. In the circumstances, arguably, the LAT proceedings are not completed.”

The Court found itself obliged to comment on the overall approach by Tipping and his counsel. Whereas the core issue was entitlement to benefits, “the record shows an ongoing and relentless focus on peripheral issues… This course of conduct has not proven helpful to Mr. Tipping in pursuing what may be a legitimate claim for significant benefits. I strongly urge Mr. Tipping and his counsel to stop this course of conduct and to focus on what is at the core of Mr. Tipping’s claim.” Costs were awarded to Coseco in the sum of $10,000.

Sur-Reply Allowed Despite Meeting None of the Criteria

Following the Rules Optional? – In Godber v Aviva (20-006792), the Tribunal went to considerable lengths in confirming the limited circumstances in which a sur-reply (further submissions when the other party has made additional legal arguments or introduced additional issues in reply, provided an inaccurate statement of the law, or an inaccurate statement of facts critical to the determination of the issues in dispute) is allowed, and the requisite procedures to be followed. Firstly, it was noted that the party seeking to submit sur-reply submissions must file a Notice of Motion, and then “it must then satisfy the Tribunal that these submissions are required.” This process provides for a “fulsome record, with evidence, regarding why these additional submissions should or should not become part of the record.” This further promotes consistency and prevents an abuse of process.

Procedural fairness also “demands there is an element of finality in the adjudicative process. This finality provides certainty to the process, such that parties are not left to wonder if additional submissions are required at some point in the future. Additional, unanticipated submissions may lead to a further delay in a process that was designed to be efficient and timely in determining disputes related to statutory accident benefits.” Further, “the potential ‘snowball effect’ is another real concern related to sur-reply submissions. Often these sur-reply submissions necessitate a further reply from the opposing party. This can lead to additional rounds of submissions that were not initially anticipated and may also compromise the efficiency of the adjudicative process.” Sur-reply submissions “should only be provided in limited or exceptional circumstances. They are not intended to be an additional opportunity for parties to bolster their case or supplement previous submissions.”

Despite the foregoing, the Tribunal was “prepared to admit them into the record for the preliminary issue hearing of this matter.” Therefore, the Respondent’s motion to strike Godber’s sur-reply was denied, as “the Tribunal will only strike submissions when there is no other remedy available to address potential prejudice wrought to the parties. In this matter, there are alternative remedies available, like the provision of additional written submissions.”

Related LAT inFORMER issues:

Open versus Empty Mind
The Court Dismisses Concurrent Appeal and Judicial Review

Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!