The LAT erred in not permitting the Claimant to have Reply Questioning on new topic raised by expert, and in refusing to admit relevant security footage showing aftermath of bicycle accident. The overriding task of the Licence Appeal Tribunal was to ensure that the requirement of procedural fairness was adhered to. After permitting Dr. Sherali Esmail to open a new field by providing an assessment of the results of the Glasgow Coma Scale test that resulted in an overall value of 8 the Tribunal, rather than attempting to meet the concern, compounded the problem leading to procedural unfairness when it refused to allow Dr. Keith Meloff to provide evidence in reply. In the end, Dr. Sherali Esmail’s evidence went uncontradicted and was relied on by the Licence Appeal Tribunal in finding the initial Glasgow Coma Scale test score of 8/15 was inaccurate. It was procedurally unfair to deny Jeffrey Lockyear an equal opportunity to address and reply to this new evidence.
Refusing to admit the video was also a breach of procedural fairness. The video could have served not just to the paramedic remember what occurred on that day, but more importantly it may have confirmed what the paramedic otherwise said under oath, keeping in mind that the paramedic’s evidence was not accepted by the adjudicator. With the paramedic’s credibility being questioned, the video should have been accepted into evidence.
Lockyear v. Wawanesa Mutual Insurance Company, 2022 ONSC 94
https://www.canlii.org/en/on/onscdc/doc/2022/2022onsc94/2022onsc94.html