Trial Counsel for Law Firms

A Primer on the LAT for Accident Benefits

The transition from FSCO arbitrations to Licence Appeal Tribunal (LAT) hearings is well underway.  This article will apply Mick’s Trial Fundamentals to the LAT’s Automobile Accident Benefits Service.

The LAT process moves a lot faster than FSCO, with an aim to complete application within 6 months.  As a result, it is a good practice to have a list of witnesses and necessary documents ready to go before starting an application.

Going one step further, it might be a good idea to complete a Case Conference Summary, discussed below, when an Application is completed.  The Case Conference Summary has to be done soon anyways and it will force you to sort out your witnesses and documents and make sure your case is ready to go.

1. Story

Every case needs a compelling story and because there is more emphasis on paperwork in the LAT, storytelling will have to be done effectively with every filing, both affidavits and written submissions.

2. People

Witnesses must be disclosed as part of a Case Conference Summary at least 10 days before the Case Conference, including a brief description of each witness’ anticipated testimony (rule 20.4(f)).  Rule 9 sets out a minimum disclosure of lists of witnesses and brief summaries of anticipated evidence at least 10 days before the hearing or sooner if ordered by the Tribunal.

Summonses are dealt with at rule 8 and can be requested by a party.  Oddly, the request is supposed to set out a brief explanation of the information the witness is expected to give at the hearing, which is a strange requirement as that information is normally litigation privileged, however, it goes into a Case Conference Summary anyway.  Requests for summonses should be made as early as the Case Conference (rule 20.04(d)).  The LAT’s form of summons is available here.

3. Documents and Things

Documents other than expert reports must be listed and disclosed at least 10 days before the Case Conference (rule 20.04(1) and (b)).

The Case Conference Summary also lists the documents you want from the insurer (rule 20.4(c)).

At a bare minimum, pursuant to rule 9, documents must be served at least 10 days before a hearing or sooner if ordered by the Tribunal.

4. Law of Evidence

Expert reports should be provided 10 days before the Case Conference as expert reports and summaries of evidence are due then (rule 20.04(f)).  Doing so makes for more meaningful settlement discussions.  If more than 2 experts are needed, that is dealt with at the Case Conference (rule 20.04(g)).

At minimum, expert reports from the appellant are due 30 days before the hearing or sooner if ordered sooner.  Respondent’s expert reports are due 20 days before the hearing.

Expert reports must cover:

  • Rule 10.2(d): The instructions provided to the expert in relation to the proceeding, the expert’s conclusions, and the basis for those conclusions on the issues to which the expert will provide evidence to the Tribunal; and
  • Rule 10.2(e): A concise summary stating the facts and issues that are admitted and those that are in dispute, and the expert’s findings and conclusions.

Rule 10.2(e) is odd in that admissions are not normally dealt with in expert reports since making admissions is the role of counsel on instructions from the client and is not done by experts.

Experts must provide a C.V. and must sign, but not swear, an Acknowledgement of Expert’s Duty.  Challenges to an expert’s qualifications must be made at least 10 days before the hearing as opposed to at the hearing (rule 10.04).  This appears to be an attempt to speed up hearings by not having to deal with the qualification of experts.

5. Trial Procedure

Click here for the LAT’s rules of practice and procedure.

Applications must be made within 2 years of a denial of a benefit.  Practically, applications should be made as soon as possible after a denial but long enough so that the necessary expert reports can be obtained.  Responses are due within 10 days.  There is no right of reply.  Click here for the forms.

Cases at the LAT will go to a Case Conference within 40-65 days of an insurer’s response.  10 days before the Case Conference, a Case Conference Summary is due.  This is a critical and perhaps the most significant deadline.  Rule 20.4 explains what must be in a Case Conference Summary or you can review the LAT’s Sample Case Conference Summary.  Clients must attend Case Conferences by phone.  Logistically, parties may have to disconnect from the conference call to discuss offers with their counsel, so it may be wise to have your client at your office for the Case Conference.

Hearings will occur 60-90 days after a Case Conference and can be in writing, by videoconference, in person or a combination.  The parties can request one type of hearing or another at the Case Conference.

Motions are due at least 10 days before a Case Conference or Hearing and responses are due at least 5 days before the motion is to be heard (rule 15).

Requests for reconsideration are due within 21 days of an order and appeals are to the Divisional Court within 30 days.

6. Substantive Law

The substantive law at the LAT is the same as at FSCO and is based on the Statutory Accident Benefits Schedule and decisions will be posted to CanLii.

Costs are only available if a party has acted unreasonably, frivolously, vexatiously, or in bad faith.

This article is courtesy of Mick’s Trial Manual

Click here for Mick’s Trial Manual

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This manual is trial information, not trial legal advice.

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