June 21, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Shuttleworth v LAT and Peel Mutual
Date of Decision: June 20, 2018
Heard Before: Thornburn J.
SUPERIOR COURT OF JUSTICE - APPLICATION FOR JUDICIAL REVIEW
Mary Shuttleworth suffered physical and psychological injuries when the car she was in was hit head on September 28, 2012. She was found not to be CAT impaired by the LAT.
Several months later counsel for Ms. Shuttleworth received an anonymous note stating that the decision of the adjudicator in the case was changed before release by the chair of SLATSO (Safety, Licensing APPEALS and Standards Ontario) who oversees the LAT. Information in the note led the solicitor to believe the note was genuine.
The Applicant then sought details of how the adjudicator arrived at the decision. She discovered 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 who provided comments to the adjudicator who in turn revised the decision. Further revisions were then made before the release of the decision.
The Applicant claims this process does not meet the requirements established by the Supreme Court of Canada to allow for consultation in the decision-making process while protecting the independence of the decision maker, noting the process was deficient int eh following ways:
- Consultation was imposed on the adjudicator by the executive chair, a ‘superior level of authority within the administrative hierarchy”, and
- There is reason to believe the executive chair changed the adjudicator’s decision. The Respondents have refused to provide evidence to confirm the nature of the revisions made by the executive chair so there is no way of knowing whether the executive chair changed the decision as suggested in the anonymous note.
The Applicant claims there is reason to believe the adjudicator’s decision was influenced by the executive chair and isn’t an independent decision. She seeks to:
- Quash the decision and order a rehearing or reconsideration without input form the executive chair.
- Alternatively, she seeks an adjournment of the proceeding to allow her to examine the adjudicator and executive chair for discovery and / or obtain further documentation and an extension of time to file the evidence.
The Respondent submits the anonymous letter is not admissible and is double hearsay. In any event they claim the decision making is a consultative proves, and that where a LAT decision involves novel, contentious, precedent-setting or high-profile issues, the executive chair reviews the decision as a second peer reviewer. The review is not intended to question facts or evidence, or to comment on the ultimate result but to offer suggestions to improve clarity, reasoning, readability and to ensure the application of the correct legal test. The Respondent also submits that there is no credible evidence to challenge the adjudicator’s independence and the application for judicial review must fail.
On consideration of the matter Thornburn J. set aside the adjudicator’s decision on the basis that the consultative decision-making process followed by the LAT in this case did not meet the minimum standards required to ensure both eh existence and the appearance of adjudicative independence of the adjudicator’s decision. Justice must not only be done but must seen to be done. A cautious observer would have a reasonable basis to believe that the decision did not reflect the independent decision fo the adjudicator, and if must be set aside.
Thornburn J. reviewed the roles of SLASTO and LAT, noting that the executive chair of SLASTO exercises a ‘superior level of authority within the administrative hierarchy” pursuant to the Adjudicative Tribunals Accountability Governance and Appointments Act, 2009, SO 2009, c 33 s. 17 (4).
Thornburn J. then reviewed sworn affidavits provided by the LAT noting that the executive chair implemented the decision review process to maximize the quality of the tribunal’s decisions. This process is not formally adopted, and no written policy was provided. Counsel for LAT swore that ‘generally, the LAT decision review process for final decisions is, and at all material times in this case was” as follows:
First there is a peer review: after drafting a decision an adjudicator is expected to send the decision or peer review by the Duty Vice-Chair who provides input.
Second there is a legal review: the SLASTO legal Services Unit reviews the decision to ensure the correct legal test is applied
Third there is a second peer review by the Executive Chair: “in some rare circumstances such as when a decision involves a novel, contentious, precedent-setting, or high profile issue the Legal Services Unit sends the decision to the Executive Chair for review.
Fourth there is a review by the file’s case management officer for syntax, spelling, format, etc.
Thornburn J. noted that the lack of a written policy is significant as the ATAGAA has a very formal process to ensure the accountability of tribunal members and officers internally and to the public. Pursuant to eh ATAGAA:
Section 7 () the member accountability framework must be approved by the tribunal’s responsible minister.
Publication, Amendment and Review of Public Accountability Documents, Publication of public accountability documents
Secition 8 Every adjudicative tribunal shall make its public accountability documents approved as required….available to the public.
The graphic presentation of the peer review process made no mention to the voluntariness of the peer review process. Moreover, according to counsel, adjudicators ‘are expected’ to submit their decisions for review. When comments are made by the executive chair they are being made by a person with authority over the adjudicator’s reappointment.
Thornburn J. noted that the FOI request made by the applicant included two emails which clearly noted the reviews of the decision had occurred and that the adjudicator had revised it pursuant to input from the executive chair. The emails also confirmed the executive chair had concerns about the case, and about the ‘understanding and willingness’ of the adjudicator ‘to work with legal and myself [executive chair] to ensure the best possible decision’.
- May the Applicant seek judicial review prior to the reconsideration and/or appeal of the decision?
- Should the anonymous letter be admitted and if so, for what purpose?
- Is there a reasonable apprehension that the decision was not made by and independent decision-make and if so, what is the appropriate remedy?
- The Applicant has not sought reconsideration, nor has she appealed the Adjudicator’s decision. The application for judicial review may proceed notwithstanding that there has been not reconsideration or appeal of the decision.
- The Anonymous letter should be admitted into evidence no on the basis of the truth of its contents but for the purpose of the narrative: to explain why the Applicant became concerned about the decision after the time for reconsideration and appeal had expired, and why se sought further information from the respondents regarding the decision and the process of decision-making.
- An admirative decision-maker’s discussion of a draft decision with colleagues does not, in and of itself, breach the rules of natural justice. The implementation of an institutional consultation procedure does not create an apprehension of bias or lack of independence provided a system is designed to safeguard the ability of the decision maker to decide the facts and the law to be applied independently. The basic principals to ensure the compliance with the rules of natural justice are as follows:
- Consultation proceeding cannot be imposed by a superior level of authority within the administrative hierarchy but can be requested only by the adjudicators themselves.
- Consultation must be limited to questions of policy and law. Members of the organization who have not heard the evidence cannot be allowed to re-assess it. The consultation must proceed on the basis of the facts as stated by members who heard the evidence.
- Even on questions of law and policy, decision makers must remain free to take whatever decision they deem right in their conscience and understanding of the facts and the law, and not be compelled to adopt the views expressed by other members of the administrative tribunal.
Thornburn J. ruled that as the decision in this case was subjected to a peer review process that did not contain the required safeguards of adjudicative independence, the decision of the adjudicator is set aside and referred back to the LAT for a new hearing. The Applicant is warded $12,000 inclusive of HST and disbursements.