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| David Muir |
The LAT has the second-largest caseload of all tribunals under the Tribunals Ontario umbrella, with more than 16,000 applications received in 2023-24. But while there has been undeniable progress at the LAT in clearing more files than it takes in, the end of the backlog comes with a couple of asterisks, including persistent long delays for decisions on cases that go to a hearing and a complex definition of what a backlog means.
When is a backlog not a backlog?
Whether any branch of Tribunals Ontario can announce the end of a backlog is determined by a complex formula (found in a footnote at the bottom of the final page of the online version of the annual report or in a footnote on page 20 of the PDF version.) Elimination of a backlog under this formula doesn’t mean that there are no old cases still open. The formula consists of a two-part test, both of which must be met on a quarterly basis before victory over a backlog can be declared. First, total cases at a tribunal must be less than the total number of applications received in the most recent “target life cycle” — the target life cycle is the expected time between an application and the closing of the file; the LAT uses one year as its target life cycle. And second, 80 per cent of cases must be within the target life cycle.
This apparently means that up to 20 per cent of cases can be older than the target life cycle and Tribunals Ontario will still say there is no backlog at all. In the case of the LAT, the annual report says that 85 per cent of cases were within the 12-month life cycle at the end of the fiscal year in March 2024, after more than 18,000 files were closed. There is no indication about the age of the other 15 per cent of files. But lawyers who appear at the LAT say they are sometimes experiencing delays of up to a year or more after a hearing before the tribunal issues a decision.
The LAT increased the number of final decisions issued from 587 in 2022-23 to 1,088 in 2023-24. While this is a significant increase, the main reported reason for the increase in closed cases is an increase in the number closed as “settled/withdrawn”. That number increased from 15,337 in 2022-23 to 16,941 in 2023-24.
The “settled/withdrawn” category accounts for about 94 per cent of the cases closed. The LAT reports that 45 per cent of cases are settled “in whole or in part” with the assistance of the LAT. This indicates that most of the increased case closure rate has occurred because of an increased settlement rate between the parties rather than because of any improvement in the LAT’s process.
It is important to understand that the LAT deals primarily with disputes between motor vehicle accident victims and their own insurance company — more than 96 per cent of its cases in 2023/24 — over entitlements to statutory accident benefits such as income replacement, physical and mental health treatment and other mandated benefits. Without understanding how long it actually takes for the small proportion of cases that require a final hearing (10 to 15 per cent in any given year,) it is impossible to evaluate the fairness and justice of proceedings at the LAT
While the fact that more cases were closed than were received is a sign of progress, it is also important to note that the entire AABS operation is paid for by the insurance industry rather than the provincial government, to the tune of more than $17 million in 2023-24. The AABS, constituting almost all the LAT’s caseload, does not need to beg the government for more money through Tribunals Ontario, and in this respect is unique.
The annual report shows that in-person hearings and case conference are virtually extinct. There was only one in-person “hearing event” compared with 13,118 electronic and 1,388 in writing.
Unacceptable delay in issuing decisions
For people injured in car accidents, the LAT’s delays in issuing decisions can present severe difficulties in accessing such services as physiotherapy, or in replacing income for people unable to work. There are also long-term costs, often to the publicly funded health system, of injured claimants not receiving timely treatment. The LAT fell short of its 80 per cent target of issuing decisions within 90 days of a hearing’s conclusion, coming in at 70 per cent, no improvement over 2022-23. Again, there is no indication of how much more than the 90 days those slow decisions take. One lawyer we talked to, who is still waiting for a decision five months after a hearing, said colleagues often advise clients that it could take a year until a decision is rendered relating to an accident from a year or more before the hearing. It appears that many cases are resolved quickly, but the minority that proceed to a hearing and decision are unacceptably slow.
Very low appellant success rate
Any good news from the LAT obscures a disturbing trend, highlighted in a recent report commissioned for the Ontario Trial Lawyers Association, a plaintiff-side group, showing a dramatic drop in the percentage of cases won at the LAT by claimants injured in auto accidents. https://www.otla.com/docDownload/2501912
The report looked at nearly 4,500 auto accident benefits decisions by the LAT since that tribunal took over jurisdiction in these cases in 2016 from the Financial Services Commission of Ontario. It found that the success rate for appellants dropped from 33 per cent to only 10 per cent from 2017 to 2023. Success rate for insurance companies in the same period rose from 56 to 71 per cent, while split decisions went from 11 to 19 per cent.
Loss of expertise
The trial lawyers’ group says the report raises questions about the qualifications and training of LAT adjudicators, a problem highlighted by Tribunal Watch Ontario at many other tribunals. The medical-legal issues dealt with my LAT are often complex and technical, but many of the adjudicators appointed have no or limited experience with the relevant subject matter, and their training emphasizes LAT procedures rather than legal expertise, according to the trial lawyers’ group. More than 120 LAT adjudicators are listed on the Public Appointments Secretariat website.
The study commissioned by the lawyers’ group followed a particularly scandalous case at the LAT in 2023, where an adjudicator accepted a position with Aviva Insurance in June 2022 but stayed with the LAT until November of that year, rendering more than 10 decisions, all in favour of insurance companies, including Aviva. After an uproar, the LAT offered to rehear the cases — at the appellant’s cost.
The LAT process, according to the trial lawyers, is overly rigid, fraught with procedural unfairness — such as limiting the number of witnesses — and fails to accommodate requests for such things as adjournments, even when both parties agree (see: Fernandez v. Commonwell Mutual Insurance, [2024] O.J. No. 4181).
It is a pattern that Tribunal Watch Ontario has seen at other tribunals: priority given to closing files and improving statistics rather than to ensuring a fair process and results that are legally sound.
The procedural roadblocks and delays, combined with the inexperience and lack of qualifications of many adjudicators, are contributing to the skewed results for cases that go to hearings.
With such a strong record at the LAT, insurance companies are reportedly feeling emboldened, increasingly denying claims they might otherwise approve, in the hopes that the claimant will give up or settle for a small amount instead of taking a case to the LAT. Insurance companies know all about risk, and they see little risk in defending a denial at the LAT.
The trial lawyers’ group has called for an independent review of the LAT, including how adjudicators are appointed, the training they receive, and the LAT’s processes.
Tribunal Watch Ontario has recommended the establishment of an independent Adjudicative Tribunal Justice Council to oversee the adjudicative tribunal system and de-politicize the appointment and reappointment process for all adjudicative tribunals. As an interim measure, Tribunal Watch supports the call for an independent review of the LAT.
David Muir is a lawyer and retired adjudicator with more than 30 years of service with various Tribunals at both the provincial and federal levels. You can reach him at Dave.Muir@sympatico.ca.
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