Should a LAT member be allowed to reconsider their own decision?

New amendments to rules surrounding the Licence Appeal Tribunal (LAT) in Ontario “have sent a dagger into the heart” of one insurance defence lawyer.

Effective Feb. 7, 2019, Rule 18 of the LAT will be amended to allow, among other things, reconsideration requests to be heard by any member of the tribunal, not just the executive chair. It applies to any order issued on or after Jan. 28, 2019.

“What does that mean? Well, I can tell you what it means,” Philippa Samworth, partner at Dutton Brock LLP, said last week at the Ontario Insurance Adjusters Association’s 2019 Claims Conference in Toronto. “It means that it’s no longer the executive chair that hears reconsideration. The rule now specifically provides that any member of the tribunal can hear a reconsideration.

“And guess what? Guess who can hear the reconsideration? The person who heard and made the decision in the first place.”

Samworth said the change seems “ridiculous,” but noted it could be beneficial if there is new evidence before the tribunal member that wasn’t there before. “But if they’ve made a decision on a legal point, why are you going to have a reconsideration when they’ve already made up their mind?” she asked during the session Accident Benefits: A Year in Review at the conference. “Are you going to change their mind the second time around?”

Other changes to Rule 18 include:

• Reconsideration of interlocutory decisions is no longer permitted (interlocutory decisions are those in which there is no final decision on the matter)
• Clarification that reconsiderations will be heard in writing, as is the current practice
• Clarification of the grounds for reconsideration.

LAT is an independent, quasi-judicial agency that is one of five tribunals in the Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO) cluster. SLASTO said on its website that “these changes to Rule 18 will provide more flexibility and ensure that requests for reconsiderations are processed in the most efficient manner.”