Law Times

Page 14 August 6, 2018 • LAw times www.lawtimesnews.com Decision has shaken confidence in LAT BY MICHAEL MCKIERNAN For Law Times P ersonal injury lawyers say Ontario's Licence Appeal Tribunal must do more to restore con- fidence in the tribunal's inde- pendence following a Divisional Court decision that cast doubt on its decision-making process. In Mary Shuttleworth v. Licence Appeal Tribunal, a unanimous three-judge panel of the Divisional Court ruled that the LAT's faulty peer re- view process, which included an intervention by the executive chairperson of the Safety, Li- censing Appeals and Standards Tribunals Ontario, the umbrella organization that oversees the LAT and a number of other ad- ministrative tribunals, created a reasonable apprehension of lack of independence. As a result, the court ordered a fresh hearing to determine whether injuries Shuttleworth suffered in a car accident were serious enough to meet the defi- nition of catastrophic impair- ment. Sarah Copeland, a spokes- woman for SLASTO, said in a statement that the LAT has sought leave to appeal the Divi- sional Court ruling at the prov- ince's top court, explaining that the decision review process is in- tended to ensure "quality service to the public" and should be seen as a resource for its adjudicators. "It provides a key element of adjudicator training and devel- opment, and ensures consistent quality decision-making. Fur- ther, this process assists in avoid- ing unnecessary reconsidera- tions, reviews, judicial reviews and appeals, thus minimizing complexity and costs to the par- ties," she wrote. In the end, it is adjudicators who make the final decision, Copeland added, emphasiz- ing that "they are free to accept or reject comments generated through the review process." The LAT took over jurisdic- tion for all matters under the Statutory Accident Benefits Schedule in April 2016, when cases were diverted to it for arbi- tration, away from the Financial Services Commission of Ontar- io. As part of the transfer, claim- ants also lost their right to sue in court for accident benefits. But Ron Bohm, president of the Ontario Trial Lawyers As- sociation, says the Shuttleworth decision has shaken the confi- dence of many of his members in the f ledgling LAT process, and he questioned the adequacy of the tribunal's response. "At this point, we have heard that the LAT is going to clarify that all comments in the peer review process are for the au- thor's consideration only and they are non-binding," he says. "With respect, that does not go far enough to allay legitimate concerns." Bohm says the LAT's en- tire review process, which was never documented or formal- ized before the Divisional Court decision, should be made fully transparent and that any mecha- nism should entirely exclude SLASTO's executive chairwom- an, since she also holds author- ity over decision-makers' reap- pointment following the expiry of their three-year terms under provincial legislation. "Ultimately, the only way to secure the independence of ad- judicators is to tenure them like the FSCO arbitrators were and judges are," Bohm says. In addition, he says parties should be informed when deci- sions are subject to peer review and apprised of any issues raised during the process. The Divisional Court case dates back to 2012, when Mary Shuttleworth was the passen- ger in a friend's car as it was hit head-on by another vehicle. After a denial by her insurer, Shuttleworth asked the LAT to rule whether she met the thresh- old under the SABS, which al- lows for a catastrophic impair- ment designation in cases where a combination of permanent mental and physical problems result in at least a 55-per-cent rating under its whole-person- impairment test. However, in the tribunal's first decision considering the catastrophic impairment threshold, LAT member Susan Sapin found Shuttleworth fell just short, with a rating of 51 per cent. According to the Divisional Court, events took an unusual turn just weeks after the April 2017 decision was issued, when Shuttleworth's lawyer, Gary Mazin, received an anonymous letter alleging that Sapin had initially found his client cata- strophically impaired, only to change the result following a review by SLASTO executive chairwoman Linda Lamoureux. A freedom-of-information request by Mazin uncovered correspondence between Spain and Lamoureux that suggested the executive chairwoman's intervention came without no- tice to the adjudicator, and he launched an application for ju- dicial review at the Divisional Court. Despite admitting the anon- ymous letter into evidence, Ontario Superior Court Justice Julie Thorburn, writing for the Divisional Court panel, said she made "no finding of any actual impropriety having occurred on the facts of this case." "The applicant did not prove that the executive chair did any- thing to force the adjudicator to change her decision," Thorburn added. Still, the LAT's consultative decision-making process in the case fell short, she found, not- ing that 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 reason- able basis to believe that the Personal Injury Law Untitled-2 1 2018-06-04 3:42 PM Ron Bohm says the Shuttleworth decision has shaken the confidence of many of his members in the fledgling LAT process. See Peer, page 15

• Cover