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| Brian Cook |
The LAT, which has the second-largest caseload of all the 13 boards and tribunals under the Tribunals Ontario umbrella, has jurisdiction under more than 40 statutes, but more than 95 per cent of its cases arise from disputes between people injured in auto accidents and their own insurance companies. At issue in these cases are entitlements to income replacement, physical and mental health treatment and other statutory benefits.
A new independently produced report commissioned by the Ontario Trial Lawyers Association (OTLA), a plaintiff-side group, analyzed 1,100 LAT insurance decisions from 2024 and found that injured people who appealed denials won in only eight per cent of cases. Insurance companies won in 74 per cent of the cases, and the rest were assessed as split decisions, with a partial win for each party.
The eight per cent figure is significant because it continues a trend favouring insurance companies that has been apparent since the LAT was moved into Tribunals Ontario in early 2019, shortly after the Doug Ford government took office. Before that, in 2017, injured people had a success rate at the LAT of 33 per cent, according to the study commissioned by the trial lawyers’ group. (The 2023 figure was 11 per cent.) The full report is here.
OTLA has renewed the call for an independent review of the LAT, a call that Tribunal Watch Ontario supports. OTLA president Mary-Anne Strong said in a statement that “the persistent decline in applicant success rates indicates that something within the system is no longer working as it should,” adding that “when the tribunal tasked with interpreting consumer protection legislation and deciding disputes under that legislation consistently finds against the consumer and in favour of the insurance company, consumer confidence erodes.”
Both Tribunal Watch Ontario and the OTLA are concerned that there is no indication that the LAT has investigated why the success rate for injured claimants has declined so quickly that it is now in the single digits.
Meanwhile, the Ford government announced in November that Ken Bednarek will soon take over as the new leader for the LAT, in addition to a continuing part-time appointment to the Assessment Review Board, which reviews property assessments.
Bednarek appears to have little or no background in the often complex world of medical-legal disputes but deep connections to the Progressive Conservative party. He is a former chief of staff to a Ford cabinet minister and a former political staffer for two federal Conservative cabinet ministers. Tribunal Watch found records of nearly 70 financial donations by Bednarek to the federal and provincial Conservative parties over the past 25 years. Like many Conservative insiders, the Ford government awarded Bednarek a King’s Counsel designation in 2023 when it revived the title nearly 40 years after Queen’s Counsel awards were abolished because they were tainted with patronage.
Once again, the government appears to be ignoring the legal requirement for merit-based tribunal appointments set out in the Adjudicative Tribunals Accountability, Governance and Appointments Act.
Tribunal Watch Ontario believes that while political affiliation should not disqualify a person from an appointment, neither should it be a qualification.
In addition to concerns about its tilt toward insurance companies, Tribunal Watch Ontario and the OTLA have cited instances of procedural unfairness at the LAT. Some of these situations have drawn the attention of the Divisional Court, part of the Ontario Superior Court of Justice, which has overturned several LAT decisions because of the way the hearing was conducted. See Increased judicial intervention to correct unfairness at key tribunals – Tribunal Watch Ontario.
The new associate chair appointment at LAT is consistent with a pattern identified by Tribunal Watch Ontario in which the Ford government names people to important adjudicative positions who have little or no subject-matter expertise or related adjudicative experience. This has contributed to severe backlogs at some of the larger tribunals, and poor, unbalanced or delayed decision-making.
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.
Brian Cook is the co-ordinator of Tribunal Watch Ontario.
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