Adjudicative Independence

A recent Court of Appeal for Ontario decision has affirmed a Divisional Court’s decision in favour of the Plaintiff setting aside a LAT’s decision that the Plaintiff had not met the threshold test for “catastrophic impairment”.  A new hearing has been ordered.

The Court of Appeal states: 

While it made no finding of any actual impropriety, the court held that the LAT’s decision-making process did not meet the minimum standards required to ensure both the existence and appearance of adjudicative independence. 

A brief history is noted:

The process for an injured person in Ontario is to apply to your insurer for a determination that the injuries sustained as a result of a motor vehicle accident have impacted one’s impairment and that those injuries have met the statutory threshold for a “catastrophic impairment” as outlined in the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“the SABS”). If you meet the threshold test, this will entitle a Plaintiff to “enhanced benefits.”

Catastrophic Impairment – Definition:

3 (2) For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

  1. paraplegia or quadriplegia;
  2. the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg;
  3. the total loss of vision in both eyes;
  4. subject to subsection (4), brain impairment that results in,
    1. a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or {See timing restrictions in s. 3(5) below}
    2. a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M.,Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;
  5. subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’sGuides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or {See timing restrictions in s. 3(5) below}
  6. subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

If there is not an agreement on whether the threshold test has been met, the Plaintiff may apply to the Licence Appeal Tribunal (the “LAT”) for a review.  The Plaintiff in this case received a determination by the insurer that the threshold test had not been met.  The Plaintiff did not agree with this decision and applied to the LAT who also confirmed that the threshold test for “catastrophic impairment” had not been met.  The Plaintiff thereafter applied for a Judicial Review. “In the result, the Divisional Court granted Ms. Shuttleworth’s application, set aside the adjudicator’s decision, and referred the matter back to the LAT for a new hearing.”

The new SABS in Ontario were introduced on September 1, 2010.  Here is an article that has a great overview worth reading from Thomson Rogers:

The new SABS serve to restrict and reduce the accident benefits available in serious but non-catastrophic cases. Generally speaking, the new SABS will have a negative impact on motor vehicle accident victims in Ontario.

Here is the shocking piece about this case and I will quote directly from this case:

 [2]         Approximately two months later, Ms. Shuttleworth’s counsel received an anonymous letter stating that, before the decision was released, it was reviewed and changed by Linda Lamoureux, the executive chair of SLASTO. The letter claimed that in Ms. Sapin’s initial decision, Ms. Shuttleworth’s injuries qualified as a catastrophic impairment, but when Ms. Lamoureux reviewed the decision, she altered it and determined that Ms. Shuttleworth did not meet the threshold. The letter also indicated that Ms. Sapin was reluctant to sign the decision.

[3]         Ms. Shuttleworth attempted to obtain information about the process followed in her case. This was met by a broad claim of adjudicative privilege asserted by the LAT. However, the LAT did produce some emails without attachments, which it relied on in support of its position that there was no interference with Ms. Sapin’s decision. Having obtained no meaningful information regarding the serious charges in the anonymous letter, Ms. Shuttleworth brought an application for judicial review.

[4]         The Divisional Court granted Ms. Shuttleworth’s application for judicial review and set aside the LAT’s decision. While it made no finding of any actual impropriety, the court held that the LAT’s decision-making process did not meet the minimum standards required to ensure both the existence and appearance of adjudicative independence.

[5]         The LAT and SLATSO appeal the order of the Divisional Court, as does Peel (“the appellants”). They assert that the court erred in law in finding that there was a reasonable apprehension of lack of independence in relation to Ms. Sapin. As I will explain below, I do not accept this submission and would dismiss the appeal.

The Decision:

[54]        The Divisional Court’s finding of a reasonable apprehension of a lack of independence was supported by the facts of this case. The Divisional Court found, based on the emails, that the adjudicator did make changes following the executive chair’s comments: at para. 57. The Divisional Court further found that those changes were significant, as the executive chair believed they were important enough to justify further delay: at para. 61.

[55]      In addition, the executive chair became involved without the adjudicator’s consent. The Divisional Court appropriately gave weight to the fact that the executive chair imposed the review and the adjudicator was only informed of it after it took place. It considered this evidence cumulatively with the lack of a formal written policy to protect the adjudicator’s right to decline to participate and the lack of evidence as to the nature of the changes stemming from the review.

[56]      In summary, there is no basis for appellate interference with the Divisional Court’s analysis of the issue of a reasonable apprehension of a lack of independence. In my view, that analysis is correct.

Disposition

[57]      For the foregoing reasons, I would dismiss the appeal. On a new hearing before the LAT, Ms. Shuttleworth and Peel have agreed to rely only on evidence available at the time of the original hearing so no party would be in a better position.

[58]      The parties have agreed on costs in the event Ms. Shuttleworth is successful. Those costs are fixed in the all-inclusive total sums of $2,500 against the LAT and SLASTO, and $6,250 against Peel.

Released: “C.W.H.” June 21, 2019

“C.W. Hourigan J.A.”

“I agree. M. Tulloch J.A.”

“I agree. Fairburn J.A.”

This case is referenced as Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518 (CanLII).  This decision should be reviewed in its entirety as it offers quite a bit of insight.

The Divisional Court decision can also be viewed here:  Mary Shuttleworth v. Licence Appeal Tribunal, 2018 ONSC 3790 (CanLII).

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