Law Times

Law Times • augusT 6, 2018 Page 15 www.lawtimesnews.com decision did not ref lect the in- dependent decision of the adju- dicator. It must therefore be set aside," Thorburn wrote. At the Divisional Court, a lawyer for the LAT explained that its peer review system was implemented by Lamoureux in order to enhance decision- making, but it had not been ad- opted formally. After drafting decisions, ad- judicators are expected to send them for peer review by a duty vice chairperson, who may pro- vide suggestions on the clarity and reasoning of the decision, according to the LAT lawyer. Decisions are also subject to legal review by SLASTO lawyers, who ensure the correct legal tests were used and to identify any case law that might have been missed. A further peer review by the executive chairperson was a rar- er occurrence, according to the decision, save for cases involving novel or high-profile issues, such as Shuttleworth's consideration of the catastrophic impairment designation. The fourth and final form of review, the LAT lawyer said, is by a case management officer, who focuses on the spelling, gram- mar and format of the decision. The Divisional Court deci- sion explained that peer review processes do not necessarily raise an apprehension of lack of independence, but they must meet certain standards to avoid breaching the rules of natural justice, outlined in the 2001 de- cision by the Supreme Court of Canada in Ellis-Don Ltd. v. Ontario (Labour Relations Board). First, the consultation pro- ceeding must not be imposed by a superior level of authority within the administrative hier- archy. It can be requested only by the adjudicators themselves. Second, it must be limited to questions of policy and law. Re- viewers who have not heard the evidence cannot re-assess it. Third, decision-makers must remain free to take whatever decision they deem right. They can not be compelled to adopt the views expressed by other members of the administrative tribunal. In Shuttleworth, the Di- visional Court found that the LAT's review process fell down on the first requirement, since it was imposed by SLASTO's ex- ecutive chairperson. "Consultation was not re- quested by the Adjudicator. There was no formal or writ- ten policy protecting the ad- judicator's right to decline to participate in review by the executive chair or to decline to make changes proposed by the executive chair," Thorburn con- cluded. Mazin says the whole expe- rience has made him approach any decision coming out of the LAT with a great deal of extra skepticism. "Their response has been monumentally disappointing," he says. "Instead of taking construc- tive criticism and trying to re- vamp their system, they seem to be attempting to minimize the court's condemnation of their involuntary consultation process and sweep it under the rug." Thunder Bay, Ont. lawyer Duncan Macgillivray says he's alarmed by the serendipitous way in which the LAT review process came to light in the first place. "We might never have known if it wasn't for the whistleblower. It's like something out of a mov- ie," he says. "To a normal member of the public, it all looks bizarre, and it's going to take away their con- fidence in the system. "The stakes are enormous," Macgillivray adds, noting that Shuttleworth was just a hair's breadth from a catastrophic designation, which would have boosted the cap on her com- bined attendant care and medi- cal and rehabilitation services to $1 million from $65,000. "What allegedly happened here is going to be scary to the public," he says. "If the LAT is going to have a peer review pro- cess, it needs to be entirely trans- parent." According to Bohm, the LAT should be held to an even higher standard of independence due to the inability of successful plain- tiffs to claim costs at the tribu- nal. "Making costs available at the LAT would be huge and should be a top priority," he says. "The problem is that insurance com- panies will continue to hire and pay lawyers for almost every LAT dispute and will continue to arm themselves with costly medical reports favouring their position. "As it stands now, injured people have no practical ability to be able to meaningfully chal- lenge insurer decisions to deny or terminate the payment of benefits. Over time, this will en- courage insurers to refuse even more benefits, knowing that a successful challenge to those re- fusals will be difficult, if not im- possible," Bohm adds. LT Continued from page 14 Peer review program needs to be 'transparent' Personal Injury Law What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-3 1 2018-02-08 2:41 PM Gary Mazin says a recent case he acted in has made him approach any decision coming out of the LAT with a great deal of extra skepticism. To a normal member of the public, it all looks bizarre, and it's going to take away their confidence in the system. Duncan Macgillivray

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