Something is rotten in the state of Denmark.
Well, maybe not quite rotten. But consider the facts of a recent, real-life scenario: a Licence Appeal Tribunal (LAT) catastrophic determination decision that is then, internally, changed by a superior, which is then brought to the attention of the plaintiff through an anonymous note, who then brings an application before the Divisional Court to have the decision set aside. See, all the excitement of a Shakespeare play.
Call us paranoid, but personal injury lawyers collectively were aghast after reading the fact pattern that led to the decision of Mary Shuttleworth v. Licence Appeal Tribunal 2018 ONSC 3790. The decision reviewed the claim of Mary Shuttleworth, who suffered injuries from a motor vehicle accident on Sept. 28, 2012. The LAT adjudicator determined that she was not sufficiently injured to be deemed catastrophically impaired under the Statutory Accident Benefits Schedule (SABS) and was therefore not entitled to the slew of benefits available to catastrophically impaired victims.
Shortly thereafter, the lawyer for the plaintiff received an anonymous note indicating that the adjudicator who wrote the decision had her decision changed by the executive chair of the Safety, Licensing Appeals and Standards Tribunals Ontario (SLATSO), the umbrella organization of LAT, to deem the applicant not catastrophically impaired.
Understandably, the applicant sought information from the LAT to discover how the adjudicator reached her decision. The plaintiff then learned that, pursuant to a review process imposed by the executive chair, the legal department sent the adjudicator’s decision to the executive chair for review.
The executive chair then made her comments, and the adjudicator revised her original decision accordingly. On discovering this information, an application was brought before the Divisional Court to have the decision set aside.
In ruling on the application, the Divisional Court noted that while a system based on an institutional consultation procedure could potentially be implemented — as long as it is safeguarded by certain basic principles (Ellis-Don Ltd. v. Ontario (Labour Relations Board)  1 S.C.R. 221) — here it was contravened since the review was imposed by a superior and not requested by the adjudicator.
In setting aside the decision, the court concluded that: “The applicant did not prove that the executive chair did anything to force the adjudicator to change her decision. Rather, the consultative decision-making process followed by the LAT in this case did not meet the minimum standards required to ensure both the existence and the appearance of adjudicative independence of the adjudicator’s decision. 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.”
This decision comes as sort of bittersweet for personal injury lawyers. On one hand, we are happy that the decision was set aside; but on the other hand, it makes us ponder about all the anonymous letters we didn’t get. We just have to hope that the facts surrounding this case look worse than they actually are — sort of what the court was concerned about.
And while the impact of this case on future LAT decisions is yet to be determined, we hope all decision-makers will strive to be better at making sure justice is done, in substance and in appearance. Because, after all, justice always whirls in equal measure.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.