Canada: Justice Must Not Only Be Done, It Must Be Seen - The LAT's Mandate To Ensure Both The Existence And The Appearance Of Adjudicative Independence In Their Decision-Making Processes

Decision Overview

This decision, Mary Shuttleworth v. License Appeal Tribunal, 2018 ONSC 3790, concerns a claimant who brought a dispute over statutory accident benefits to the License Appeal Tribunal ("LAT"), arising from a motor vehicle collision. The LAT has statutory authority to hear all disputes related to benefits under the Statutory Accident Benefits Schedule ("SABS").

The LAT Adjudicator decided that the claimant's injuries did not warrant a designation of catastrophic impairment as defined in the SABS. A designation of catastrophic impairment under the SABS increases limits of some benefits and is a prerequisite for other benefits.

Months after the Adjudicator rendered her decision, counsel for the claimant received an anonymous letter alleging that the Adjudicator had originally drafted a decision finding that the catastrophic impairment definition was satisfied. The note further alleged that this original decision was subsequently reviewed by the Executive Chair of the Safety, Licensing Appeals and Standards Ontario ("SLASTO"), the umbrella organization covering the LAT, and that through this review process the original decision was changed. The only decision actually released in the matter ruled the claimant was not catastrophically impaired.

Upon a Freedom of Information inquiry into the LAT and its adjudicative processes, the claimant discovered the existence of an unwritten review process imposed by the Executive Chair, whereby the LAT's legal department submits the Adjudicator's draft decisions to the Executive Chair for comment and review.

The claimant alleged that this process fails to comply with the requirements for consultation in the adjudication process while protecting the independence of the decision maker, established by the Supreme Court of Canada.1 The claimant alleged there were sufficient grounds to believe the Adjudicator's decision was influenced by the Executive Chair and the decision rendered did not reflect the Adjudicator's independent decision.

Counsel for LAT submitted that where a LAT decision involves a precedent-setting or high-profile issue, the Executive Chair reviews the decision as a second peer reviewer. Counsel for the LAT submitted that this was the case with the above dispute, as it was the first decision to determine catastrophic impairment and entitlement to benefits under the newly reformed administrative structure of the LAT. The LAT argued that the purpose of the review process is to offer suggestions to improve clarity, reasoning, and for ensuring that the appropriate legal test(s) have been applied. Further, the LAT claimed those who review the draft decision accept, and do not question, the facts and evidence as presented in the draft. Of note, counsel for the LAT submitted that Adjudicators could not be compelled to participate in the review process, as the process was alleged to be entirely discretionary.

The Honourable Justice Thorburn allowed the application brought by the claimant and set aside the Adjudicator's decision. There was no finding of adjudicative impropriety on the part of the LAT. However, Justice Thorburn determined the consultative adjudication process followed by the LAT failed to comply with the minimum standards required to ensure the appearance and existence of adjudicative independence of the Adjudicator's decision on this matter.

The Role of theSLASTO and the LAT

The mandate of the LAT is to resolve disputes in respect of an insured person's entitlement to SABS benefits and the amount to which they are entitled.2

As per the Adjudicative Tribunals Accountability Governance and Appointments Act (the "ATAGAA"), the LAT has been designated under the SLASTO cluster of tribunals. The Executive Chair of SLASTO is a LAT member and has the authority as its chair under s. 17(1) of ATAGAA.

Accordingly, the Executive Chair of SLASTO exercises a superior level of authority within the administrative hierarchy.

Cautions Associated with the LAT's Decision Review Process

Counsel for the LAT swore an affidavit explaining that the Executive Chair implemented a decision review process at the LAT, for the purpose of maximizing the quality and clarity of LAT decisions. While the peer review process has not been formally adopted, counsel for the LAT swore the LAT decision process for final decisions is, and was at all material times in this case, as follows:

  1. After drafting a decision, the Adjudicator submits a draft for peer review to the Duty Vice-Chair, who offers suggestions to improve clarity, reasoning, readability, and evaluates whether appropriate legal tests and case law have been included;
  2. Next, there is a legal review, where SLASTO's Legal Services unit reviews the decision and canvasses for whether appropriate legal tests and case law have been included;
  3. This is followed by a second peer review by the Executive Chair, in instances (as was the case in this matter) when a decision involves a novel, contentious, or precedent-setting issue, the Legal Services Unit submits the draft to the Executive Chair, who offers the same kinds of comments as outlined above;
  4. Lastly, there is a review by the file's Case Management Officer, who canvasses the decision for appropriate formatting and grammar.

The ATAGAA contains a formal process to ensure accountability of tribunals members and offers both internally and to the public. Specifically, the ATAGAA specifies that every adjudicative tribunal shall make its public accountability documents available to the public.3 The absence of a written policy represents a significant instance of non-compliance with the ATAGAA on the part of the LAT.

Counsel for the LAT disclosed to the Court a graphic representation of the peer review process implemented during the Adjudication process. Upon examination, the Court was not satisfied this evidenced a voluntary of the peer review process. The Court further focused on the expectation that Adjudicators would submit their decisions for review to the Executive Chair without specific input from the Adjudicators.

Ruling on the LAT'sStandard of Review

The Court is required to evaluate whether the rules of procedural fairness have been followed by assessing the circumstances substantiating the allegations of bias and by determining what procedures and safeguards were required in the prescribed circumstances in order to comply with the duty to act fairly.4

The Court did not conclude that the Adjudicator did not make her decision independently. However, a rule of consultation set out in Ellis Don was contravened. Review was imposed by the Executive Chair, an individual at a supervisory level of authority within the administrative hierarchy. In addition to the absence of consultation being requested by the Adjudicator, there was no formal or written policy protecting the Adjudicator's right to decline participation in the peer review process. This failure to comply with the rules for consultation laid out in Ellis Don creates a reasonable apprehension of lack of independence.

Ruling Implications

The consequences of the Court's decision, in this case, are potentially significant, in that they call into question potentially all other decisions put forward by the LAT, along with other adjudicative tribunals.

Conceivably, according to this decision, every single decision put forward by the LAT may have lacked the consultative safeguards and protections to mitigate Adjudicator bias and promote adjudicative independence. Accordingly, it is possible that other LAT decisions may be investigated and could even be set aside on analogous grounds. It is not clear that a limitations period bars judicial reviews on decisions rendered by adjudicative tribunals, further increasing the potential scope of this decision.

Footnote

1 Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 SCR 221 [Ellis Don].
2 Insurance Act, RSO 1990, c I-8, s 280.
3 Adjudicative Tribunals Accountability, Governance, and Appointments Act, SO 2009, c 33, Schedule 5, s. 8.
4 London (City) v Ayerswood Development Corp, 2002 OAC 120 at para 10.

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