Volume. 9 Issue. 1 – January 8, 2025
Happy New Year! Welcome back to the 1st issue of 2025! This week’s edition features a Tribunal case that was fundamentally mishandled, initially and further upon reconsideration. As it turns, the Tribunal seems to have been aware of the multiple instances of procedural unfairness, given that they offered to have the matter sent back for a rehearing before the appeal to the court was heard. The failure of the insurer to agree to this doubtless inclined the court to levy the quantum of costs, in conjunction with the inability of the parties to agree on the quantum beforehand.
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Court Awards $69K in Costs for Apparent Miscarriage of Justice
Procedural Fairness Missing in Action – The Appellant, Shannon Plante, in Plante v Economical, appealed from two decisions of the LAT. In the first decision, Vice Chair Tyler Moore (VC Moore) determined that she was not entitled to numerous benefits, including attendant care benefits, a four-wheel scooter, a power lift chair, home modifications, rent, and occupational therapy. Plante was a person under disability, having been born with cerebral palsy and has a longstanding history of physical, psychiatric, and cognitive limitations. VC Moore determined that on the balance of probabilities, the accident was a cause of some, but not all of the impairments that Plante sustained, upholding this decision on reconsideration.
20 Day Hearing Reduced to Five
Prior to the decision being heard, Adjudicator Gosio released an endorsement that, amongst a number of things, determined that this matter would be heard with LAT file 21-002437/AABS. It was determined that the two matters would not only be heard together but that 20 days would be allocated for the combined hearing. The concluding paragraph of his endorsement stated that his orders were subject to the hearing adjudicator’s discretion. However, at the outset of the hearing VC Moore ordered that the Appellant’s claim, and the claim of her mother would be heard separately. He also stated that “I don’t see a need for a 10-day hearing for either one. And essentially what we’re looking at is we’re looking for a six-to-seven-day hearing for each file.” Counsel for Plante attempted to make submissions, however VC Moore “interrupted him and stated that “we’re going to be hearing this file separately…you’re going to have a couple of minutes to provide your submissions as to why this should not be separated, but your [sic] not going to have more than five minutes. …. we will be separating the two hearings. We’ll be hearing them separately.”
In the reconsideration decision, VC Moore stated that “In fact, the applicant agreed that the hearing would not take more than five days in total. Even after the applicant’s witness list changed during the hearing to include additional witnesses, the applicant did not raise the issue that she required more time to present her case.”. However, the court found that “A fair reading of the transcript of the proceedings does not support these findings. The Appellant did not request additional time because VC Moore made it abundantly clear that he had already ruled on how long the hearing would last and the allocation of time to each side.”
Material Change in Health?
It was noted that one of the key issues that was heard by VC Moore was whether there had been any material change in Plante’s medical condition caused by the accident. A key expert for Economical was an Occupational Therapist, Janelle MacKinnon (MacKinnon) who prepared a report on the letterhead of DFS. Counsel for Economical had agreed to obtain the DFS file, however it was not produced prior to the hearing. Accordingly, counsel for Plante obtained a subpoena from the LAT directed to DFS to produce its file at the hearing. A representative of DFS, Laura Florentine-Radzio (Radzio) was scheduled to attend the hearing with a complete copy of the DFS file.
Inconsistent Expert OT Reports
The complete DFS file was relevant because MacKinnon’s reports were inconsistent with one another on key issues. MacKinnon conducted one assessment on October 16, 2020, and wrote three subsequent reports based on that assessment, all of which are dated February 26, 2021. In both of her independent occupational therapy evaluation reports, dated February 26, 2021, MacKinnon found amongst other things that: “With respect strictly to the injuries Ms. Plante sustained during the subject accident she demonstrated a greater level of dependency with her mobility, hygiene bathroom/bedroom, home exercises program and bathing/showering compared to prior to the accident.” However, in an assessment of attendant care needs report, also dated February 26, 2021, MacKinnon found that: “With respect strictly to the injuries Ms. Plante sustained during the subject accident she demonstrated the same level of dependency with her personal care compared to prior to the accident.”
Eight Versions of the Same Report
Despite the Appellant’s request, DFS refused to produce its complete file in advance of Radzio’s testimony at the hearing. Radzio of DFS was called to give evidence, and she had the complete DFS file readily accessible. VC Moore however ordered that the DFS file not be provided to the Plante as the documents would not be admitted for consideration because Plante had not been able to establish relevancy. Tellingly, “Radzio testified that there were eight versions of MacKinnon’s report. In the first version, MacKinnon found that Shannon demonstrated a “greater level of dependency” after the accident. In the seventh version, “greater level of dependency” was altered to the “same level of dependency.” Plante renewed a request for a cross examination of the author of the report given the fundamental inconsistencies therein. In response, VC Moore indicated that “Radzio referred to Ms. Mackinnon’s emails and draft reports and read them aloud at the hearing. I was satisfied with Ms. Florentin-Radzio’s testimony that resolved the question of inconsistencies in Ms. MacKinnon’s reports after hearing evidence about the contents of the applicant’s Dynamic Functional Solutions file.”
Fundamentally Unfair
The court found that it was “fundamentally unfair of VC Moore to confront the parties at the beginning of the hearing with what can only be described as a unilateral decision to separate the Appellant’s hearing from that of her mother and then to unilaterally change the length of the hearing from 20 days to 5 days. If the endorsement of a prehearing adjudicator like that of Adjudicator Gosio is going to be altered in a material way, there is an obligation on the part of the LAT to provide reasonable and sufficient notice to the parties to make fulsome submissions…Before the process was gutted, the parties and counsel were entitled to know what was being proposed and why it was being proposed. They were entitled to some time to consider their positions and an opportunity to make submissions on the proposal before a final decision was made. They were entitled to the courtesy and respect of being heard and having their knowledgeable views considered. They were then entitled to some time to adjust their preparation to the new reality foisted upon them.”
Revisionist History on the Part of the LAT
Further, “Even more egregious than VC Moore’s predetermination of the manner and length of the hearing was his reconsideration decision, where he stated… the applicant did not raise the issue that she required more time to present her case…the applicant was given the opportunity to make submissions, ultimately agreeing that the hearing only required five days instead of the 20 days allotted. Counsel for Plante “suggested the ruling of VC Moore reflected in paras. 12 and 13 of his reconsideration decision was “revisionist history” and patently false. We agree…VC Moore’s original decision was procedurally unfair. VC Moore’s reconsideration decision was equally flawed. On this basis alone we would order a new hearing.”
Wrong Entity Cross Examined
With respect to the refusal of VC Moore to allow cross-examination of MacKinnon, the court found “remarkable” that VC Moore was satisfied that any inconsistencies in MacKinnon’s reports were cleared up by Radzio’s evidence, as the latter was not the author of the report. The court found it “entirely inappropriate for that assessment company to be involved in the substantive writing of an expert’s report.” It was only MacKinnon who could explain why her opinion had changed from “The appellant had demonstrated a greater level of dependency …to the appellant demonstrated the same level of dependency.” The suggestion on the part of VC Moore “that because Radzio read MacKinnon’s emails and draft reports “aloud at the hearing” “resolved the question of inconsistencies in MacKinnon’s reports” … reflects a fundamental misunderstanding of the role of an expert, the imperative for the trier of fact to assess the reliability and credibility of the expert’s evidence, and the proper role of an assessment company.” Accordingly, the “failure of VC Moore to allow that cross-examination to take place and then using the unchallenged evidence was fundamentally unfair.”
Similar Prior Issues with IE Vendor
The court referenced an earlier court decision, Higashi v. Chiarot, that “bear(s) a remarkable resemblance to the MacKinnon reports and the involvement of DFS.” In this earlier decision, the court found that “As part of the quality control with DFS, Mr. Jung provided a draft of his report to DFS for their review. The purpose of the DFS review was only to correct typographical errors and formatting. However, during the cross-examination, it was shown that DFS went beyond correcting spelling mistakes. DFS made recommendations to Mr. Jung to amend the substance of his report.” The “cross-examination of the Occupational Therapist demonstrated precisely why Mr Obagi should have been allowed to cross-examine MacKinnon. It is now over one hundred years since Wigmore wrote that “cross-examination is the greatest known method for detecting the truth”. Those words remain as true today as they did a century ago. The refusal of VC Moore to allow the Appellant an opportunity to cross-examine MacKinnon was fundamentally flawed. His rationale appears to have been it all went to what weight he would put on MacKinnon’s report. The report went into evidence completely unchallenged.”
Appeal Granted
Concluding, the “The decision of VC Moore to unilaterally change the length of the hearing; his decision to unilaterally sever the hearings of the Appellant and her mother; and his decision to refuse the Appellant’s request to cross-examine MacKinnon were unfair to the Appellant and were not a proper exercise of the discretion afforded to an Adjudicator under either Rule 3.2 of the LAT Rules or s. 25.0.1 of the SPPA. For these reasons, the appeal is granted and a new hearing before a different Adjudicator is directed.”
Costs Not Agreed Upon
The court noted that the “parties were unable to agree on costs at the time of the hearing before this court. It is the expectation that counsel will have discussed the issue of costs prior to the hearing and reached a resolution as to the quantum of costs to the successful party.” The court further took note of a letter from counsel for the LAT that confirmed “My instructions are to consent to an order allowing this appeal and have the matter remitted back to the LAT for a new hearing before a different adjudicator on a without costs basis”.
$69K
As this offer was not accepted and this appeal was argued, the court made a determination as to quantum. “Having considered the costs outlines of the parties, we are fixing costs in the amount of $69,000 all inclusive which costs are payable by the Respondent within 30 days.”
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