Canada: Transparency At The Licence Appeal Tribunal

Last Updated: September 17 2018
Article by Kevin S. Adams and Alon Barda

In Mary Shuttleworth v. Licence Appeal Tribunal1, a three judge panel of the Divisional Court scrutinized the internal review process for decisions of the Licence Appeal Tribunal (LAT).

As a result of the problems revealed,2 changes will likely need to be made to the LAT's consultation process to ensure that it does not create a reasonable apprehension of lack of independence.

LAT Decision

The LAT adjudicator in Shuttleworth issued a decision finding that the Applicant was not catastrophically impaired. However, several months after the decision was released, counsel for the Applicant received an anonymous note from someone within the LAT.

The note explained that the adjudicator initially found the Applicant to meet the definition to be considered catastrophically impaired, but the executive chair of the Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO)3 reviewed the draft decision and "changed the decision to make the Applicant not catastrophically impaired".

The Applicant sought information from the LAT about how the decision was reached and it was revealed that, pursuant to an unwritten review process imposed by the executive chair, the legal department sent the adjudicator's draft decision to the executive chair for review and comments.

In turn, the executive chair provided comments to the adjudicator and the adjudicator thanked the executive chair for the helpful review of the decision and noted that she was working on revising the decision. The adjudicator then made further revisions and the decision was released.

Arguments at Divisional Court

At the Divisional Court, the Applicant argued that the decision was deficient as consultation was imposed on the adjudicator by the executive chair and there was reason to believe the executive chair changed the decision, particularly since the LAT refused to provide evidence regarding the nature of the changes made to the draft decision.

In response, the LAT argued that its decision-making is a consultative process. The LAT explained that the review is not intended to question the facts and evidence or to comment on the ultimate decision, and adjudicators cannot be compelled to participate in the review process.

Affidavit evidence was presented to explain that the executive chair implemented the decision review process to maximize the quality of LAT decisions. This unwritten policy called for:

  • an initial peer review by the Duty-Vice Chair (to improve clarity and ensure the correct legal test was applied);
  • legal review by SLASTO Legal Services (to ensure the correct legal test has been applied and to identify related caselaw that may be helpful);
  • a second peer review to the executive chair in rare instances (for example, if a decision involves a novel, contentious, precedent-setting, or high profile issue); and
  • review by the file's case management officer (i.e. for formatting and spelling).

Counsel for the LAT advised that it was important for the executive chair to review decisions and offer suggestions, particularly in Shuttleworth, since this was the first decision on catastrophic impairment by the LAT.

Divisional Court Decision

The Divisional Court observed that an institutional consultation procedure itself would not create an apprehension of bias or lack of independence provided basic principles are followed to ensure compliance with the rules of natural justice.

However, the Court cautioned that the consultation cannot be imposed by a superior level of authority within the administrative hierarchy, but can only be requested by the adjudicators.

The Court noted that the absence of a written policy regarding this review process is significant considering that the applicable legislation contains a "very formal process to ensure the accountability of tribunal members and officers both internally and to the public".

In this regard, no documents were provided to outline the LAT's review process, nor did the LAT advise that the process was adopted and published in accordance with the statutory process.

As a preliminary issue, the Court found that the application for judicial review may proceed even though the LAT's internal mechanisms of appeal had not been exhausted (reconsideration by the executive chair and/or an appeal).

The Court then looked at the central issue of whether there was a reasonable apprehension that the adjudicator did not arrive at her decision independently.

As the Applicant did not cross-examine on the affidavit filed by the LAT, the Court accepted that the adjudicator has complete discretion to accept or reject any revisions offered and also the extent to which further drafts or revisions are shown to the reviewer before releasing a decision. As such, on the evidence, the Court was "unable to conclude that the adjudicator did not make her decision independently."

Nevertheless, the Court highlighted that an important rule of consultation as set out by the Supreme Court of Canada in Ellis-Don Ltd. v. Ontario (Labour Relations Board)4 was contravened in this case, as review was imposed by the executive chair (a person with supervisory level of authority within the administrative hierarchy).

Furthermore, consultation was not requested by the adjudicator and there was no formal written policy protecting the adjudicator's right to decline to participate in review by the executive chair, or to decline to make changes proposed by the executive chair, notwithstanding the statutory accountability process that called for one.

Ultimately, the Court concluded that the adjudicator's decision was subjected to a peer review process that did not contain the necessary safeguards of adjudicative independence and this failure to comply with the rules for consultation creates a reasonable apprehension of lack of independence. The decision of the adjudicator was therefore set aside and referred back to the LAT for a new hearing.

Importantly for the LAT, there was no finding of any actual impropriety having occurred, as the Applicant did not prove the executive chair did anything to force the adjudicator to change the original decision.

The fact that the adjudicator thanked the executive chair for her assistance in what was a difficult decision for her to complete, undermines the suggestion in the anonymous letter that the adjudicator was pressured to change her decision.

This is significant as a finding to the contrary would have called into question the overall independence of the adjudicative process at the LAT and could have impacted the many decisions already rendered by the tribunal.

Conclusion

As it stands, the decision by the Divisional Court in Shuttleworth is still significant in that the Court found that the consultative decision-making process followed by the LAT did not meet the minimum standards required to ensure both the existence and the appearance of independence of the adjudicator's decision.

The Court aptly stated that "justice must not only be done" but also must "be seen to be done".

Moving forward, the LAT should ensure that there is a written policy setting out a properly limited, voluntary consultative process in order to ensure that an informed and cautious observer would have no reasonable basis to believe that decisions by the LAT are anything but independent decisions of the appointed adjudicators.

Footnotes

[1] 2018 ONSC 3790.

[2] Considering the importance of this case, we can anticipate the LAT appealing the decision to the Court of Appeal.

[3] SLASTO is a cluster of adjudicative tribunals comprised of five tribunals, including the LAT.

[4] [2001] 1 SCR 221 citing IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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