Print
 

 Volume. 8 Issue. 18 – May 15, 2024


This week we examine a court ruling on several breaches of procedural fairness in a CAT matter where the LAT ruled against the Applicant. Ultimately the court agreed with the Applicant on all counts, ordering the matter being remitted to the Tribunal for a new hearing.



SABS Summer Session!

Secure your seat for inHEALTH’s 2024 Summer Virtual Training session!

  • SABS Expedited: June 17th – 21st, 2024

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +



Court Confirms Three Breaches of Procedural Fairness by Tribunal

Procedural Fairness Breached x 3 – The Applicant Shahin, in 21-006450 v Intact, appealed to the court as to whether she was accorded procedural fairness when the Tribunal found that she was not catastrophically impaired. The Tribunal had reasoned that both that the accident did not cause Shahin’s mental condition, and that in any event her condition did not meet the level of catastrophic impairment. She contended that the Tribunal had unfairly relied upon Intact’s expert neuropsychologist Dr. West, considered causation when that was not at issue, and relied upon documents that were not entered into evidence by either party. The court agreed with Shahin that the hearing violated her right to procedural fairness, and accordingly it was remitted to the Tribunal for a new hearing.

Not Available for Cross Examination

Shahin submitted that the Tribunal breached procedural fairness by not requiring Intact’s Dr. West to re-attend for cross examination. Dr. West had provided nearly 100 pages of untested oral evidence. The court ruled that “Once it became clear that Dr. West did not plan to re-attend for cross-examination and the Tribunal determined it would not order him to do so, it should have disregarded his evidence and struck his report from the record. The Tribunal instead concluded that…there was no reason to consider the testimony of Dr. West to determine the applicant’s entitlement to the treatment plans in dispute, or if the applicant should be determined to be catastrophically impaired.” However, it was clear that the Tribunal had gone on to rely on components of Dr. West’s evidence in its decision.

The Tribunal did reference the Statutory Powers Procedure Act, wherein a Tribunal was free to reasonably limit cross-examination, “This is not a situation where the Tribunal limited further cross-examination; there was no cross-examination of Dr. West whatsoever… (the Tribunal) did not provide reasons for its decision on this point, other than to say it would not rely on Dr. West’s conclusions on the central issues. It did not provide any explanation or justification for relying on other untested information in Dr. West’s evidence to Ms. Shahin’s detriment.” While the Tribunal had relied on substantial other evidence, “Dr. West’s evidence infected the Tribunal’s conclusions on the central issues governing its decision. In these circumstances, the Tribunal’s reliance on the untested evidence of Dr. West breached procedural fairness.”



Causation Not at Issue

The court further agreed with Shahin that “the Tribunal breached procedural fairness by deciding she was not entitled to benefits in part because the accident did not cause her mental condition.” It was noted that in opening statements, both parties confirmed causation was not in dispute. At no time during the proceeding did Intact’s position change, providing no argument or cases regarding causation. The Tribunal “did not otherwise advise the parties that it was considering causation. Ms. Shahin therefore had no notice or opportunity to make legal or factual submissions addressing the issue.”

The court found that “Causation was a critical issue in the Tribunal’s analysis. If the accident did not cause any injury, Ms. Shahin had no opportunity to recover benefits. The Tribunal went on to find that Ms. Shahin’s condition also did not rise to the level of catastrophic impairment but the finding that there was no causation was the first important step in its analysis.

Documents Not Entered Into Evidence

Finally, the court agreed that the “Tribunal’s repeated reliance on documents neither party referred to also breached procedural fairness.” Both parties agreed that a number of documents relied upon by the Tribunal, while in their respective briefs, were never admitted into evidence.

This to be understood in context of the Tribunal having at the outset advised both parties that “any document not referred to by pinpoint reference during oral arguments will not be reviewed.” Despite this, the court found that “the Tribunal made negative findings about credibility and impeached Ms. Shahin’s testimony using excerpts from medical records she was never questioned on.”

While true that the Tribunal relied upon other evidence in concluding there was no CAT impairment, “is impossible to conclude the information she was not questioned on was of little significance. This information formed part of the Tribunal’s justification for its conclusion on Ms. Shahin’s level of impairment. It was an error to rely on this information, which was not in evidence, was not drawn to the parties’ attention, and which Ms. Shahin was not questioned on, in support of the Tribunal’s conclusion on this central issue.”

While Shahin had sought as remedy the court rendering a decision on the facts, “the issues in this case are heavily fact dependent. It would not be appropriate for the court to substitute its own conclusions on the issues before the Tribunal. Therefore, the matter is remitted to the Tribunal for a fresh hearing by a different adjudicator or panel of adjudicators”. Costs of $5,000 were awarded to Shahin.



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

 

Archive of LAT Updates

October 30, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT, Divisional Court

October 28, 2024: IE Fails to Explain Lack of Diagnosis

MIG

October 23, 2024: Loose Lid Unexpected "Accident"

Definition Accident

October 21, 2024: Dental Work Required Not Caused by MVA

MIG

October 7, 2024: Continuity of Complaints Confirm Chronic Pain

MIG

October 2, 2024: All Items in Dispute Deemed Incurred

Treatment Plans

September 30, 2024: Ignoring Medical Evidence Proves Award Worthy

MIG

September 25, 2024: Credibility Issues Abound with IE Assessor

IE

September 23, 2024: Reliance on Symptom Magnification Test Proves Fatal

MIG

September 16, 2024: Self Reporting Accepted for Psych MIG Escape

MIG

September 9, 2024: Diagnosis Alone Falls Short in Chronic Pain Case

MIG

September 4, 2024: CAT Finding Upheld on Reconsideration

CAT, Reconsiderations

August 28, 2024: Staged MVA Results in $93K Repayment Order

Definition Accident, Evidence

August 26, 2024: What Exactly Constitutes “Compelling” Evidence?

MIG

August 21, 2024: Extreme Impairment Confirmed in CAT Decision

CAT

August 19, 2024: Post Concussive Syndrome Diagnosed in Telephone Interview

MIG

August 14, 2024: Reconsideration Varies Decision Regarding “Accident”

Definition Accident, Divisional Court

August 12, 2024: Adverse Inference Considered in MIG Determination

MIG

August 7, 2024: Re-Training Not A Viable Option - Post 104 IRB Confirmed

IRB

July 31, 2024: Applicants Allowed to Proceed to Hearing Despite Alleged Non – Compliance

Insurer’s Examinations, Procedure

July 29, 2024: No Specific Reference to Evidence Precludes MIG Escape

MIG

July 24, 2024: When is a Spouse Not a “Spouse”?

Death Benefit

July 22, 2024: No Evidence Tendered to Rebut Concussion Diagnosis

MIG

July 17, 2024: 196K Grievance Award Factored into IRB Calculation

IRB

July 15, 2024: Chronic Pain Diagnosis Does Not Warrant MIG Escape

MIG

July 10, 2024: Court Allows Applicant to Submit Judicial Review After the Fact

Divisional Court

July 8, 2024: MIG Escape Despite Unrelated Psych Issues

MIG

July 3, 2024:Application Premature On Benefits Claimed in Excess of Limits

Award, CAT, Jurisdiction

June 26, 2024: Multiple Wilful Misrepresentations Claimed but Only One Established

IRB

June 24, 2024: Chronic Pain Diagnosis 4 Years Later Uncontroverted

MIG

June 19, 2024: Court Sets Aside Tribunal Decision and Makes Decision that Ought to Have Been Made

Definition Accident, Divisional Court

June 17, 2024: Cause of ‘Remote’ Finger Fracture Questioned

MIG

June 10, 2024: Reliability on IE Opinions Challenged

MIG

June 5, 2024: IE 'Highly Intrusive' - Not Acceptable Reason For Failure To Attend

Insurer's Examinations

June 3, 2024: MVA Necessary Cause of Subluxation of Shoulder Joint

MIG

May 29, 2024: Practicing Lawyer Seeks CAT Determination

CAT

May 27, 2024: Differing Opinions on Right Knee Injury Causation

MIG

May 22, 2024: Four Marked Impairments CAT and Post 104 IRB Confirmed

CAT, IRB

May 15, 2024: Court Confirms Three Breaches of Procedural Fairness by Tribunal

Div Court

May 13, 2024: Little Weight Given to Illegible Doctor's Notes

MIG

May 8, 2024: Reasonable Perception of Bias Involving Former Adjudicator Requires Rehearing

Reconsideration

May 6, 2024: Potential Causation Does Not Support MIG Escape

MIG

May 1, 2024: Tribunal Varies Three Decisions on Reconsideration

Reconsideration, Treatment Plans

April 29, 2024: Credibility of Assessment Favored Over Psych Validity Testing

MIG

April 24, 2024: Wilful Misrepresentation Abounds on IRB Repayments

IRB

April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

MIG

April 15, 2024: Demands of Child-birth Pre-Existing Condition?

MIG

April 10, 2024: Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

Divisional Court, MIG

April 8, 2024: Psychiatric Diagnosis Prevails over Psychological Opinion

MIG

April 3, 2024: Court Sends Matter Back to Tribunal Concerning “Accident”

Definition Accident, Divisional Court

April 1, 2024: Ortho Opinion Prevails on Origins of a Fracture

MIG

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG