Reasonable Apprehension of Lack of IndependenceShuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518 (CanLII)
Keywords: Personal Injury; Anonymous Letter; Judicial Review
Ms. Mary Shuttleworth is injured in a car accident. She applies to her insurer for a determination as to whether her injuries meet the statutory threshold for “catastrophic impairment” as defined in the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”).
Following a hearing before the Licence Appeal Tribunal (“LAT”), LAT vice-chair Susan Sapin releases a decision determining the threshold is not met. Two months later, Ms. Shuttleworth’s counsel receives an anonymous letter.
The letter indicates the decision was “reviewed and changed” by the executive chair of Safety, Licensing Appeals and Standards Tribunals Ontario (“SLASTO”). The letter also indicates vice-chair Sapin had been reluctant to sign.
In response, Ms. Shuttleworth attempts to obtain more information about her decision and, eventually, brings an application for judicial review. The Divisional Court grants Ms. Shuttleworth’s application for judicial review and sets aside the LAT’s decision. The Court of Appeal agrees there was a reasonable apprehension of lack of independence with respect to vice-chair Sapin’s decision.
What is the test for a reasonable apprehension of “lack of independence” and do these circumstances meet that test? Let’s start with the basics. The anonymous letter stated as follows:
“I have heard from reliable source that Sapin’s initial decision was that this was a catastrophic impairment. This decision then went up for review and the ED Linda Lamoureux changed the decision to make the applicant not catastrophically impaired. Thought you should know that the decision was not made by an independent decision maker who heard the evidence. I was also told that Sapin hesitated to sign this order.” (See para. 9).
Was this letter carefully designed to provide a basis for an appeal as against vice-chair Sapin’s decision? The Divisional Court had found that, although some outside influence on reason writing will be considered to be permissible, there ought to be an institutional consultation procedure in place to safeguard the independence of the decision-maker. (See para. 15). The words of the anonymous letter assert that the decision lacked the requisite independence.
In the words of the Divisional Court itself: “Justice must not only be done; it must be seen to be done. In the absence of a properly limited, voluntary consultative process, an informed, cautious observer would have a reasonable basis to believe that the decision did not reflect the independent decision of the adjudicator.” (See para. 21).
Consistent with this view, the Court of Appeal stated the test to be applied is derived from a trilogy of Supreme Court of Canada decisions (IWA v. Consolidated‑Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), and Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4 (CanLII)).
The “guiding principle” from those cases is as follows:
…the decision-maker must be free to decide cases “in accordance with his own conscience and opinions”: Consolidated-Bathurst, at p. 332. Consolidated-Bathurst establishes that discussions with colleagues are permissible even though they raise the possibility of “moral suasion,” and that adjudicators are entitled to consider the opinion of their colleagues in the interest of adjudicative coherence: at pp. 331-33. The court also recognized that consultation could allow the adjudicator to benefit from the acquired experience of the entire board and foster coherence in the board’s jurisprudence: at pp. 326-28. At the same time, the court concluded that any procedure or practice that unduly restricted independence would be contrary to the rules of natural justice: at p. 323. Accordingly, procedures that “effectively compel or induce” decision-makers to decide against their own conscience and opinions are impermissible: at p. 333. (See para. 27).
Ultimately, the Court of Appeal here confirmed the Divisional Court’s finding that the review process in this case lacked the appropriate procedural safeguards. For the Court of Appeal, the adjudicator did, in fact, make significant changes (altering her decision with respect to Ms. Shuttleworth’s injuries) following the executive chair of SLASTO’s comments. (See para. 54). Moreover, the Court of Appeal agreed that the executive chair had become involved without the adjudicator’s consent, and that there had been a lack of a formal policy to protect the adjudicator’s ability to decline to take on the executive chair’s input. (See paras. 54-56).
As a consequence of these findings, the Court of Appeal dismissed the appeal, having found no basis for appellate interference with the Divisional Court’s analysis. In the result, the issue as to whether Ms. Shuttleworth’s injuries were catastrophic will return for a new hearing before the LAT.
We note that, since this matter came before the courts, the tribunal in question (formerly belonging to SLASTO) is now part of a larger group called “Tribunals Ontario”. (See Adjudicative Tribunals and Clusters, O. Reg. 126/10).
Counsel for Safety, Licensing Appeals and Standards Tribunals Ontario and Licence Appeal Tribunal: Sunil Mathai and Domenico Polla (Ministry of the Attorney General (ON), Toronto)
Counsel for Peel Mutual Insurance Company: Cynthia Verconich (Wilson, James, Barristers Professional Corporation, Ottawa)
Counsel for Mary Shuttleworth: Gary Mazin and Vasiola Bibolli (Mazin & Associates, PC, Toronto)