Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals) 2019 ONCA 518

Full Decision

Mary Shuttleworth was injured in a collision. She and her insurer, Peel Mutual, could not agree on whether she met the threshold for catastrophic impairment under the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”), so an application was submitted to the Licence Appeal Tribunal (“LAT”), which was part of a cluster of tribunals known as the Safety, Licensing Appeals and Standards Tribunals Ontario (“SLASTO”) at the time.. This was the first catastrophic impairment decision that the LAT was to release. The LAT determined that Ms. Shuttleworth did not meet the catastrophic impairment threshold.

Approximately two months later, Ms. Shuttleworth’s counsel received an anonymous letter claiming that before the decision was released, it was reviewed and changed by the executive chair of SLASTO. It also indicated that in the adjudicator’s initial decision, Ms. Shuttleworth’s injuries qualified as catastrophic impairment, but upon review, the executive chair altered the decision and determined that Ms. Shuttleworth did not meet the threshold. It also indicated that the adjudicator was reluctant to sign the decision.

Ms. Shuttleworth attempted to obtain information about the process followed in her case, but was met by a broad claim of adjudicative privilege asserted by the LAT. She brought an application for judicial review. The Divisional Court granted the application and set aside the LAT’s decision. While it made no finding of any actual impropriety, the court held that the LAT’s decision-making process did not meet the minimum standards required to ensure both the existence and appearance of adjudicative independence.

Peel, the LAT and SLATSO appealed the order, asserting that the Divisional Court erred in law in finding that there was a reasonable apprehension of lack of independence in relation to the adjudicator. The appellants submitted that the Divisional court erred by:

(a) Incorrectly articulating and applying the test for “reasonable apprehension of bias” by introducing the novel and inconsistent concept of a “cautious observer”.

(b) Wrongly applying the trilogy of Supreme Court of Canada cases involving the preparation of reasons by administrative tribunals because: 1) the review process was purely focused on the quality of the written decision and 2) the same moral suasion concerns are not present in the review process because only a maximum of four reviewers are involved and it is a simple editorial exercise.

(c) Holding that the absence of a written peer review policy was “significant” on the basis that ss. 7 and 8 of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33 (“ATAGAA”) required such policy. The text of s. 7 of does not include a requirement for a written peer-review policy and SLASTO had adopted all the required documents.

(d) Failing to conduct a holistic analysis as mandated by Khan v. College of Physicians & Surgeons (Ontario) (1992), 9 O.R. (3d) 641.

(e) Conducting an incorrect overall analysis regarding reasonable apprehension of lack of adjudicative independence. This was an important, precedent-setting matter and it was thus an appropriate case for the executive chair’s limited decision review role, which is consistent with her statutory responsibility.

The Court of Appeal addressed each of the appellant’s arguments and found that there was no basis for appellate interference with the Divisional Court’s analysis:

(a) While unfortunate that the Divisional Court used the term “cautious observer” in its reasons, on a review of the court’s reasons as a whole, it is plain that it correctly articulated the test for a reasonable apprehension of a lack of independence.

(b) It is inaccurate to characterize the LAT’s review process as a purely qualitative or editorial exercise, as reviewers did comment on whether the correct legal test and jurisprudence was identified and applied. Second, the fact that fewer people were involved in the review process does not deter from the fact that the executive chair occupies the most superior level of authority within the LAT and SLATSO; undertakes any reconsideration of the LAT adjudicator’s decisions; and holds power over the reappointment of individual adjudicators. Third, this court and other courts have found the principles from the trilogy on full-board consultation relevant to cases dealing with other review processes for draft decisions.

(c) The Court of Appeal agreed that ss. 7 and 8 of the ATGAA do not require SLATSO to publish a written peer review policy. However, the Divisional Court was still entitled to find the absence of such a policy significant when it considered the adequacy of LAT’s procedural safeguards. The Divisional Court found that the process gave adjudicators no opportunity to refuse a review by the executive chair. The absence of a written policy was thus significant because it confirmed that the LAT had not communicated to adjudicators that they had the right to refuse.

(d) The appellants’ submission that the Divisional Court failed to apply the holistic approach from Khan is unfounded. In contrast to Khan, the executive chair here was the superior of the adjudicator with power over her reappointment, not the adjudicator’s servant.

(e) The Divisional Court did not err in its conclusion that there was reasonable apprehension of bias in this case. First, it correctly found that the executive chair’s imposition of the review on the adjudicator breached the rules set out in the trilogy. Second, the breach was significant because of the significant power over re-appointment of individual adjudicators of the SLATSO executive chair. Third, the Divisional Court correctly concluded that the review process lacked the appropriate procedural safeguards. Additionally, the executive chair became involved without the adjudicator’s consent.

The appeal was dismissed and a new hearing was ordered before the LAT.

Irina Rosca
Written by

Irina Rosca received her law degree from the University of Windsor – Faculty of Law. After articling at a full service, national firm on Bay Street, she joined Greg Monforton and Partners as an Associate in 2018, where she practices exclusively in the field of personal injury. Irina is passionate and committed to protecting the rights of her clients and fighting to secure the compensation they deserve. In her spare time, Irina enjoys giving back and volunteering within her community.