In a recent decision, Mary Shuttleworth v Licence Appeal Tribunal, 2018 ONSC 3790, the Ontario Divisional Court confirmed that when a tribunal makes a decision, it must guard against creating a reasonable apprehension of a lack of independence of the decision makers.
In Ontario, every automobile insurance policy in the province provides its own insured with access to prescribed benefits if they are injured in a motor vehicle accident, regardless of fault. Under this scheme, the Licence Appeal Tribunal ("LAT") has the jurisdiction to resolve disputes and determine an insured's entitlement to benefits under the Statutory Accident Benefits Schedule (SABS). Under the SABS, there is a $50,000 limit on medical and rehabilitation benefits and a $36,000 limit on attendant care benefits. However, these limits are increased to $1,000,000 if the insured is deemed to have suffered a "catastrophic impairment". The SABS describes "catastrophic impairment" as at least 55% whole person impairment ("WPI"). To determine WPI, several indicia set out in the Guides to the Evaluation of Permanent Impairment are considered and calculated to arrive at a percentage value.
In 2012, the Applicant, Mary Shuttleworth, suffered severe injuries following a head-on collision. The LAT Adjudicator decided that the Applicant's injuries were not severe enough to qualify for benefits for catastrophic impairment under the SABS. The Adjudicator held that the Applicant had a WPI of 51% and was therefore not "catastrophically impaired". If the Applicants WPI was calculated at 53%, it would have been rounded up to 55%, thereby qualifying her as "catastrophically impaired".
However, two months later, the Applicant's lawyer received an anonymous letter indicating that after the LAT Adjudicator made her decision, the decision was reviewed by the Executive Chair of the Safety Licensing Appeals and Standards Ontario ("SLASTO"), the umbrella organization, who requested that the Adjudicator change the decision to make the Applicant "not catastrophically impaired". It was later revealed that this review by the Executive Chair was pursuant to an unwritten review process.
The Applicant claimed the review process followed did not meet the requirements established by the Supreme Court of Canada for protecting the independence of the Adjudicator. The Applicant asked to have the decision quashed and to have a rehearing of the matter.
The primary issue in this case was whether there was a reasonable apprehension that the Adjudicator did not arrive at her decision independently?
The Court allowed the application, set aside the LAT Adjudicator's decision, and referred it back to the LAT for a new hearing. The Court held that the process followed by the LAT did not meet the minimum standards required to ensure both the existence and the appearance of adjudicative independence. Prior case law had set out rules for institutional consultation so as to avoid an apprehension of bias or a lack of independence.
Specifically, the Court relied on Ellis-Don Ltd v Ontario (Labour Relations Board), 2001 SCC 4 (Ellis-Don), and IWA v Consolidated-Bathurst Packaging Ltd,  1 SCR 282 (Bathurst). In these cases, the Supreme Court of Canada held that institutional consultation ensures consistency in the decisions of an administrative body and does not create an apprehension of bias or lack of independence if the following rules are followed:
- The consultation proceeding cannot be imposed by a superior level authority within the administrative hierarchy, but can be requested only by the Adjudicators themselves;
- The consultation must be limited to questions of policy and law; and
- Even on questions of law and policy, the decision‑makers must remain free to make their own decision.
The Court held that the first rule in the test was breached. While the Court noted that an administrative decision-maker's discussion of a draft decision with colleagues does not, on its own, breach the rules of natural justice (at para 51), the review was not requested by the Adjudicator, but was imposed by the Executive Chair, a person at a supervisory level of authority within the administrative hierarchy. Further, there was no policy protecting the Adjudicator's right to refuse to participate in review by the Executive Chair or to decline to make the requested changes (at para 61).
The Court allowed the application, set aside the LAT Adjudicator's decision, and referred it back to the LAT for a new hearing.
This case reinforces the safeguards of adjudicative independence established in Ellis-Don and Bathurst. This case may cast doubt on other decisions handed down by the LAT. While this very recent decision has yet to be cited in other cases, it is a strong reminder to tribunals to avoid the appearance of an apprehension of bias or lack of independence.
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