Ontario legislation has created a number of tribunals to adjudicate matters in the health industry sector, including regulated health professional disciplinary committees, the Consent and Capacity Board, the Health Professions Appeal and Review Board, the Health Services Appeal and Review Board, the Ontario Review Board and the Information and Privacy Commission. Hospital boards, too, become adjudicators when addressing privileging disputes pursuant to the Public Hospitals Act (Ontario). These administrative tribunals effectively replace courts as the forum for adjudicating various legal disputes. Like courts, members of administrative tribunals are expected to render decisions in an impartial and independent manner.
In a decision applicable to the many health-related administrative tribunals in Ontario, the Court of Appeal recently re-affirmed the importance of safeguarding tribunals' adjudicative independence.
The Applicant, Mary Shuttleworth, was injured in a car accident on September 28, 2012. In December of 2014, she applied to her insurer, Peel Mutual Insurance Company ("Peel") for a determination as to whether her accident injuries met the threshold for "catastrophic impairment" as defined in Ontario's Statutory Accident Benefits Schedule (the "SABS"). Such a finding would entitle her to enhanced benefits.
When the parties were unable to agree on whether the threshold had been met, Ms. Shuttleworth sought a hearing before the Licence Appeal Tribunal ("LAT"). At the time, the LAT was part of a group of tribunals known as the Safety, Licensing Appeals and Standards Tribunal ("SLASTO"). The LAT acquired jurisdiction over disputes with respect to the SABS on April 1, 2016. Ms. Shuttleworth's case was the first catastrophic impairment decision that the LAT released.
On April 21, 2017, the LAT Vice-Chair, released a decision determining that Ms. Shuttleworth's injuries did not meet the threshold for catastrophic impairment. Approximately two months later, Ms. Shuttleworth's lawyer received an anonymous letter stating that the Vice-Chair's initial decision was that Ms. Shuttleworth's injuries did, indeed, qualify as a catastrophic impairment, but before the decision was released, it was reviewed and changed by the Executive Chair of SLASTO to conclude that Ms. Shuttleworth was not catastrophically impaired.
Ms. Shuttleworth attempted to obtain information about the internal process relating to her decision but was met with a broad claim of adjudicative privilege over draft decisions and other documentation, save for the disclosure of some internal e-mails. As such, Ms. Shuttleworth sought a judicial review of the LAT decision before the Divisional Court.
Divisional Court Decision
In response to Ms. Shuttleworth's application for judicial review, evidence emerged that an adjudicator is expected to circulate a draft decision for peer review. There is no means to compel adjudicators to participate in peer review and no means to prevent an adjudicator who has declined to participate from releasing a decision. In this case, the LAT Vice-Chair submitted her decision for peer review by the Duty Vice-Chair and then to the Legal Services Unit for review. Without the Vice-Chair's knowledge, the draft decision was sent by Legal Services to the Executive Chair for review, because it was the first catastrophic impairment decision that the LAT was going to release. The Divisional Court1 made the finding, based on e-mail evidence, that the adjudicator made significant changes to the decision following the Executive Chair's comments.
The Divisional Court accepted that an adjudicator's discussion of a draft decision with colleagues does not, in and of itself, breach the rules of natural justice. However, it confirmed that an institutional consultation procedure must be designed to safeguard a decision-maker's ability to independently decide the facts and law.
The Divisional Court was unable to find that the adjudicator in this case lacked actual independence. However, the Court concluded that there was a reasonable apprehension of a lack of independence for a number of reasons. First, the Executive Chair imposed a review that was not requested by the adjudicator. Second, there was no formal or written policy protecting the adjudicator's right to decline to participate in a review by the Executive Chair or to decline to make the changes proposed by the Executive Chair. The Court held that the absence of this policy was "significant" because the existence of such a policy would safeguard the appearance of propriety. Accordingly, the Divisional Court concluded that the LAT subjected the decision to a peer review process that lacked the required procedural safeguards.
The LAT, SLASTO and Peel sought an appeal of the Divisional Court decision to the Court of Appeal.
Court of Appeal Decision
The Court of Appeal2 reaffirmed that the test for a reasonable apprehension of bias or lack of independence in respect of an administrative tribunal is whether the apprehension is "a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information". It found that the Divisional Court correctly applied this test.
The Court of Appeal similarly held that the Divisional Court had correctly applied the Supreme Court of Canada's trilogy of cases on consultation in the course of preparing reasons for a decision (Consolidated Bathurst3, Tremblay4 v Quebec and Ellis-Don5). The guiding principle from the trilogy is that the decision-maker must be free to decide cases "in accordance with his own conscience and opinions". Procedures that effectively compel or induce decision-makers to decide against their own conscience and opinions are impermissible. As such, consultation with colleagues is permissible, so long as appropriate safeguards are in place to alleviate any fear of a violation of natural justice.
The appellants argued that the Divisional Court's finding that there was no evidence that the adjudicator did not make her decision independently should have led the Court to conclude that the Executive Chair's review of the draft decision did not raise a reasonable apprehension of lack of independence. The Court of Appeal disagreed for a number of reasons.
First, the Divisional Court found as a fact that the adjudicator was expected to send her decision for peer review. In addition, as a general practice, the legal department sent the decision to the Executive Chair without the adjudicator's prior knowledge.. The adjudicator was only made aware of the review by the Executive Chair after it had taken place. As such, the Court of Appeal held that the Divisional Court correctly concluded that the LAT violated the rule from the trilogy, because a superior level of authority imposed consultation on the adjudicator when the Executive Chair decided to provide comments on the decision without seeking the adjudicator's permission. The fact that the adjudicator was permitted to decline the review was irrelevant because she was never given the opportunity to do so. The violation of the rule from the trilogy was particularly significant because of the power the Executive Chair had over the adjudicator. Specifically, the Lieutenant Governor in Council could not reappoint the adjudicator without the Executive Chair's recommendation. The Divisional Court correctly concluded that the review process lacked appropriate procedural safeguards.
The Court of Appeal concluded that the Divisional Court's finding of a reasonable apprehension of a lack of independence was supported by the facts of this case. The appeal was dismissed and the Court upheld the remedy ordered by the Divisional Court for Ms. Shuttleworth to have a new hearing before the LAT.
This case highlights the importance of adjudicative independence, as well as the appearance of independence.
As an example, consistent with the principles of independence and impartiality, section 39(4) of the Public Hospitals Act (Ontario) states that members of the Board holding a hearing must not have taken part in "any investigation or consideration of the subject-matter of the hearing before the hearing". It is for this reason that hospital senior leadership must be vigilant in monitoring what information is shared with Board members regarding to potential privileging disputes.
Lawyers in our health industry group regularly assist hospitals with privileging issues and disputes, from informal resolutions to Medical Advisory Committee meetings, as well as at Board hearings. We suggest seeking advice on communication issues between hospital CEOs, Chiefs of Staff and Board members as they pertain to privileging matters that may give rise to a Hospital Board hearing. Ensuring the Board's independence, as well as the appearance of independence, is essential, such that appropriate safeguards ought to be in place.
Beyond hospital boards, the Shuttleworth case confirms the principle that adjudicators of health related administrative tribunals, including regulated health professional disciplinary committees, the Consent and Capacity Board, the Health Professions Appeal and Review Board, the Health Services Appeal and Review Board, the Ontario Review Board and the Information and Privacy Commission must ensure adjudicative independence, both in practice and in appearance.
1 Shuttleworth (Divisional Court): 2018 ONSC 3790
2 Shuttleworth (Court of Appeal): 2019 ONCA 518
3 Consolidated Bathurst 1990 1 SCR 282
4 Tremblay: 1992 1 SCR 952
5 Ellis Don: 2001 SCC 4
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