It was recently announced that the Ontario License Appeal Tribunal's (LAT) first ruling on a disputed catastrophic impairment claim involving a motor vehicle accident will be reheard.
The Court of Appeal for Ontario recently released a decision, Mary Shuttleworth v Licence Appeal Tribunal, 2018 ONSC 3790, upholding last year's Divisional Court ruling that interference in an adjudicator's decision writing by a superior creates a reasonable apprehension of bias.
This case involves Mary Shuttleworth, an Ontario woman who was severely injured in a major motor vehicle collision in 2012. A dispute arose between Ms. Shuttleworth and her accident benefits insurer, Peel Mutual, regarding the insurer's refusal to categorize Ms. Shuttleworth's injuries as catastrophic, entitling her access to $1 million in attendant care and medical/rehabilitation benefits.
The dispute was heard by the LAT in 2017, where the adjudicator determined that Ms. Shuttleworth did not meet the test for catastrophic impairment.
Shortly after the LAT decision was issued, Ms. Shuttleworth's counsel received an anonymous letter advising that the LAT adjudicator's initial draft decision had been changed by the executive chair of Safety, Licensing Appeals and Standards Ontario (SLASTO), the umbrella organization under which LAT falls.
As a result of the new information, Ms. Shuttleworth brought her case to the Divisional Court. She argued that, because of the interference from the executive chair of SLASTO, there was a reasonable apprehension that the LAT adjudicator's decision was not independent. Ms. Shuttleworth presented evidence that the executive chair, essentially the adjudicator's superior, made changes to the initial draft ruling, which the adjudicator then implemented.
In a decision released on June 20, 2018, the Divisional Court ruled in Ms. Shuttleworth's favour and ordered that there be a new LAT hearing to determine the categorization of her injuries. The Court found that the actions of the SLASTO chair violated the first part of the three-part test to determine whether an institutional consultation process creates an apprehension of bias or a lack of independence, set out in Ellis-Don Ltd v Ontario (Labour Relations Board), 2001 SCC 4 (Ellis-Don), and IWA v Consolidated-Bathurst Packaging Ltd, [1990] 1 SCR 282 (Bathurst):
- 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.
Both Peel Mutual and the LAT appealed the Divisional Court's decision, arguing that the Divisional Court had erred in its articulation and application of the legal test for reasonable apprehension of bias
On June 21, 2019, the Court of Appeal for Ontario released its decision upholding the Divisional Court's ruling. In a unanimous judgement, Justice William Hourigan wrote for the Court of Appeal that "the executive chair undertakes any reconsideration of the LAT adjudicators' decisions and holds power over the reappointment of individual adjudicators." As such, the rewriting of the LAT decision violated part one of the legal test and thus creates a reasonable apprehension of lack of independence.
Since the inception of the LAT, it has been very challenging for Applicants to successfully argue for a finding of catastrophic impairment. As this was one of the first decisions coming from the LAT, it had often been relied on by insurers seeking to deny catastrophic benefits to claimants. It will be interesting to see the impact of the recent ruling of the Court of Appeal for Ontario, as it may open the floodgate of questions as to whether other LAT decisions were truly impartial.
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