90% win rate for insurers no indication of bias, LAT adjudicator says
Personal injury firm Campisi LLP fails in attempt to have LAT Vice Chair Avril Farlam recuse herself
A Licence Appeal Tribunal adjudicator has rejected claims she is biased from a law firm whose analysis of her decision-making found that she rules in favour of insurers 90 per cent of the time.
Personal injury law boutique Campisi LLP filed its analysis in support of an application for LAT Vice Chair Avril Farlam to recuse herself from a case involving one of its clients, a pedestrian injured in an automobile accident.
The Campisi report looked at 165 decisions credited to Farlam since 2020 and found that 148 – approximately 90 per cent of the total – went the way of the insurer involved. In another nine decisions, she delivered rulings that the law firm categorized as mixed results. Just eight reported cases, or less than five per cent before Farlam, ended in success for insured persons.
According to Farlam’s ruling, Campisi lawyers also took issue with the vice-chair’s earlier denial of a late request for additional witnesses at their client’s hearing, arguing that in combination with her broader track record, any informed person reviewing the matter would conclude that she was more likely than not to rule in favour of the insurer.
Her recusal was necessary, they argued, to maintain confidence in the integrity of the administration of justice.
However, Farlam was not convinced, defending her decision to deny the applicant’s motion for 14 more witnesses – brought two days before the hearing – as “fully, fairly and impartially considered.”
“Although the applicant submits I have denied the applicant’s ability to ‘add witnesses to the hearing including the family doctor,’ this submission is not supported by the evidence. To the contrary, this submission gives the impression that applicant’s counsel is not entirely familiar with who the applicant’s physicians are,” she wrote.
Turning to the law firm’s report on her decision history, the vice-chair noted that the document failed to comply with the LAT’s rules on evidence as “unsworn, not subject to cross-examination, unsupported by any statistical detail or explanation of how it was arrived at, and referenced to irrelevant, unverified information taken from a public source.”
“Even if the decision analysis had been proven to be correct, which I find it has not, there is no evidence that any of my 165 decisions were decided incorrectly or unfairly and, without this, the applicant’s decision analysis is not a basis for establishing a reasonable apprehension of bias, let alone actual bias,” Farlam added. “It is the merits of each matter before me as adjudicator that is relevant, not what may or may not have occurred in other proceedings.”
Independent research on LAT decision-making is hard to come by, although accident benefits consultants inHealth did compile a study on the first year of its jurisdiction over accident benefit mattesr, which began in late 2016 – finding that around 58 per cent of rulings favoured the insurer as opposed to 33 per cent in favour of the insured applicant. About nine per cent of rulings rendered no decision or were split, the report found.
After dealing with the recusal motion, Farlam went on the consider the merits of the application by Campisi LLP’s client, who suffered catastrophic injuries when she was run over by a truck while crossing the street in March 2019.
The applicant sought a declaration that she was entitled to $6,000 per month in attendant care benefits per month from May 2019 – when she was discharged from hospital – to date and ongoing.
However, Farlam ruled against her, finding that the applicant had never incurred that amount, even during the five-month period when the insurer approved her for up to $6,000 per month, before her limit was later dropped to below $2,000.
“I find that the applicant is not entitled to any payment for ACB, in addition to the amounts already paid by the respondent, for the period May 15, 2019 to date and ongoing because she has not proven on a balance of probabilities that any ACB was incurred in accordance with the Schedule” Farlam concluded. “I also decline to use my discretion under s. 3(8) of the Schedule to deem ACB expenses incurred. No award is made. As no benefits are payable, no interest is payable. No costs are awarded to the applicant. Costs are awarded to the respondent payable by the applicant in the amount of $500.00.”
Ashu Ismail, a lawyer with Campisi LLP, told Court Report Canada she could not comment as Farlam’s ruling is under appeal, and a Tribunals Ontario spokesperson declined the opportunity to speak for the same reason.
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