“Justice Must be Seen to be Done”–Are LAT Decisions Truly Independent?

Intrigue and mystery are not words that anyone expects or wants to hear associated with auto insurance, but unfortunately, they apply to a recent case that involved the Licence Appeal Tribunal (LAT). This is the tribunal where auto insurance disputes between insurers and claimants are adjudicated; it’s the “last stop” for pursuing accident benefits and the highest level you can take your claim.

Initially, the events in this case were pretty straightforward.

Mary Shuttleworth sustained massive injuries when the car she was riding in on her 49th birthday was hit by a pickup truck. The damage was so severe that the Jaws of Life were used to rescue her from the wreckage. The crash left Shuttleworth with a brain injury, soft tissue injuries and post-concussive syndrome. She has not been able to work due to ongoing problems related to the crash including vision and memory loss, chronic pain, vertigo and psychological issues. Her life will never be the same as it was before the crash.

Shuttleworth applied for accident benefits from her auto insurer, Peel Mutual, after an independent assessor found that she was catastrophically impaired–meaning, 55% of her “whole person” was impaired. An assessment of catastrophic injury would meant that Shuttleworth would get substantially more compensation. But Peel Mutual disagreed, saying it was only 40%, and so the dispute went to the LAT to be adjudicated.

The LAT had only been running since April 2016 and Shuttleworth’s case was the first catastrophic injury case it was being asked to adjudicate. As such, it was something of a landmark decision that would make news (the court later characterized it as “highly significant”). As we’ve written about before, when the LAT was established, it was starting from scratch in terms of a body of precedent to base its decisions on, so this could set the tone of decisions going forward.

Shuttleworth received the results of the LAT’s adjudication: her Whole Person Impairment was assessed at 51%. WPI scores are rounded up or down to the nearest 0 or 5, so if her score had been two points higher, it would have been rounded to 55% and met the catastrophic impairment threshold. But the assessment was 51%, and Shuttleworth and her lawyer believed that that was the end of the road for her case.

That is, until several months later, when Shuttleworth’s lawyer received an anonymous letter with no return address, which read:

“I have heard from [sic] reliable source that the [adjudicator] Sapin’s initial decision was that this was a catastrophic impairment. This decision then went up for review and the [executive chair] 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 [the adjudicator] Sapin hesitated to sign this order.”

The lawyer then applied under access to information laws to see what he could learn about how the adjudicator’s decision was made. In the files that were produced, he found several emails that made it sound as though SLASTO’s executive chair had perhaps influenced the adjudicator’s decision.  (SLASTO is the cluster of tribunals that the LAT is part of, and its executive chair has a “superior level of authority within the administrative hierarchy.)

In light of these discoveries, Shuttleworth applied for a judicial review of the decision by the courts, saying that “there is reason to believe the adjudicator’s decision was influenced by the executive chair and does not represent the adjudicator’s independent decision.”

In its decision, Mary Shuttleworth v. Licence Appeal Tribunal, 2018 ONSC 3790, the Ontario Supreme Court allowed the letter into evidence, but didn’t determine that there had been any actual impropriety or that the executive chair had influenced the adjudicator’s decision. Nevertheless, it found 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 reasonable basis to believe that the decision did not reflect the independent decision of the adjudicator. It must therefore be set aside.”

Shuttleworth will undergo a new adjudication at the LAT, and she received a costs award of $12,000 for her legal fees and related expenses.

This chapter of the Shuttleworth case has ended, but unfortunately, many questions remain.

Who was the anonymous whistleblower who sent the letter to Shuttleworth’s lawyer?

Will the findings of this judicial review open a floodgate of questions on whether other adjudicative decisions in Ontario were truly independent?

And most importantly for Mary Shuttleworth, will the new adjudication find that she is catastrophically impaired, and allow her to compensation she needs to cope with her life as a severely injured person?

We will follow the case and provide updates as they are available.