“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, these words seem to be appropriately applied to a recent case from the Licence Appeal Tribunal (LAT) which is the body which adjudicates auto insurance disputes between insurers and claimants.  It is the “last stop” for pursuing accident benefits and the highest level you can take your claim.

In Shuttleworth and Peel Mutual, the Applicant, 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. Ms. Shuttleworth was not able to work due to ongoing problems related to the crash which included vision and memory loss, chronic pain, vertigo and psychological issues. Her life will never be the same as it was before the crash.

Ms. Shuttleworth applied for accident benefits from her auto insurer, Peel Mutual and an independent assessor found that she was catastrophically impaired–meaning that 55% of her “whole person” was impaired entitling Ms. Shuttleworth to substantially more compensation. Peel Mutual disagreed, maintaining that Ms. Shuttleworth was only 40% impaired and so the dispute went to the LAT to be adjudicated.

The LAT had only been implemented 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 upon which and to base its decisions so this decision could set the direction for LAT decisions going forward.

In its decision, the LAT determined that Ms. Shuttleworth’s Whole Person Impairment was 51%. Since WPI scores are rounded up or down to the nearest 0 or 5, if Ms. Shuttleworth’s score had been two points higher, it would have been rounded to 55% and met the catastrophic impairment threshold. Since the assessment was 51%, Ms. Shuttleworth and her lawyer believed that that was the end of the road for her case.

However, until several months later, Ms. 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.”

Upon receiving this letter, Ms. Shuttleworth’s lawyer applied under access to information legislation to obtain information in relation to how the adjudicator’s decision was made. In the files that were produced, he found several emails that made it sound as though the executive chair had perhaps influenced the adjudicator’s decision.

In light of this information, Ms. Shuttleworth applied for a judicial review of the decision by the courts, alleging 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 reviewing Court allowed the letter into evidence, but did not find 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.”

As a result of the Court’s decision, Ms. Shuttleworth case will again be adjudicated 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.