Ontario Judges Chastise SLASTO Executive Chair for “Reviewing” Accident Benefits Decision

If you are involved in any kind of litigation or contested judicial proceeding, you want to know that the person deciding your case will act fairly and impartially according to the law. This is especially important in car accident cases in which an injured driver or passenger seeks statutory accident benefits.

Statutory benefits are a key feature of Ontario’s “no-fault” insurance system. If your insurance company denies your accident benefits, you have the right to file an application with the Licence Appeal Tribunal (LAT). An LAT adjudicator will then hold a hearing and determine whether or not you are lawfully entitled to the statutory benefits.

Shuttleworth v. Licence Appeal Tribunal

Recently, it came to light in an Ontario Superior Court decision that LAT’s arbitrators may not be acting independently, as the law requires. Apparently, LAT maintained an unwritten policy allowing officials from the tribunal’s parent agency–Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO)–to review and possibly change adjudicators’ decisions.

Although the Superior Court did not rule directly on the propriety of SLASTO’s actions, it did order a new hearing in the case presented.

Collision Leads to Dispute With Insurance Company

The case itself began with a head-on car collision that occurred in September of 2012. The applicant in this case was a passenger in one of the vehicles. There was no question that the applicant sustained injuries as a result of the accident. Indeed, the applicant’s insurance company granted her application for statutory accident benefits.

However, there was disagreement as to whether the applicant suffered a “catastrophic impairment.” Normally, an insured person is limited to $50,000 in “medical and rehabilitation benefits” and $36,000 in “attendant care benefits” under SABS (depending on the date of the accident and insurance policy).

However, these limits increase to $1 million if the insured person’s injuries constitute a “catastrophic impairment,” which is defined by law as a “55 percent impairment of the whole person.”

There is a complex set of schedules used to calculate an applicant’s impairment rating. Here, the applicant and her insurance company hired expert assessors who came to different conclusions. The applicant’s assessors determined her accident-related impairments “met or exceeded” the 55% threshold.

Not surprisingly, the insurance company’s assessors found the applicant’s impairment was no more than 40%.

Proceedings Before the Licence Appeal Tribunal

Ultimately, the applicant brought a claim before the LAT to settle the issue. An adjudicator conducted a two-day hearing in September 2016. In April 2017, the adjudicator issued her decision. She found the applicant’s impairment rating was 51%. That is 4% short of the catastrophic impairment threshold.

About two months later, the applicant’s personal injury lawyer received what was described as an “anonymous letter.” In the letter, the author said a “reliable source” informed him/her that the adjudicator’s “initial decision” in the applicant’s case “was that this was a catastrophic impairment.”

But this initial decision then “went up for review,” and SLASTO Executive Chair Linda Lamoureux personally “changed the decision to make the applicant not catastrophically injured.”

Although the Executive Chair has statutory authority to review adjudicator decisions on appeal, adjudicators are required to render their own decisions independently. So, it is understandable that this anonymous letter strongly suggested to the applicant (and her lawyer) that something was amiss.

The applicant’s lawyer subsequently filed a freedom of information (FOI) request with the LAT for all documents related to the adjudicator’s decision, including all “documents, emails, notes, letters, and all communications” between the adjudicator and Lamoureux between the date of the hearing and the final decision.

LAT disclosed two emails in response to this request. They indicated that the Executive Chair had, in fact, reviewed the adjudicator’s initial decision and offered her comments.

Based on this information, the applicant asked the Divisional Court of the Superior Court of Justice to “quash” the adjudicator’s decision and “order a rehearing or reconsideration without input from the executive chair.”

Court: SLASTO Improperly “Imposed” Review on Adjudicator

On June 20, 2018, a three-judge panel of the Divisional Court granted the applicant’s request.

First, the Court held the anonymous letter could be admitted into evidence. The LAT objected to this on the grounds the letter constituted “double hearsay.” But as the Court explained, the letter was not admissible for the “truth of its contents,” but rather “for the purpose of narrative.”

In other words, the letter does not establish that the executive chair changed the outcome of the case, but it does explain why the applicant “became concerned about the decision” and filed her FOI request seeking additional information.

Next, the Court noted that it was not necessarily illegal for the adjudicator to discuss a draft decision “with colleagues.” To the contrary, agencies may implement “institutional consultation procedures.”

But there are certain rules that must be followed with respect to such procedures:

• First, they cannot be “imposed by a superior level of authority within the administrative hierarchy.” Instead, the adjudicator herself must request the consultation.
• Second, the consultation must be “limited to questions of policy and law.” That is to say, the adjudicator may not engage in consultation with respect to the facts or evidence of a case.
• Third, the adjudicator must always “remain free” to make whatever decision he or she feels is correct and “not be compelled to adopt the views expressed by other members of the administrative tribunal.”

The problem in this case, the Divisional Court said, was that LAT violated the first rule because review of the adjudicator’s initial decision “was imposed by the executive chair.” The adjudicator never asked the chair for her comments.

Instead, there was an “unwritten review process” in place at the time whereby the LAT’s legal department “sent the adjudicator’s draft decision to the executive chair for her review and comments.” This alone was enough to create “a reasonable apprehension of lack of independence” on the part of the adjudicator, thereby justifying a new hearing.

CONTACT PRESZLER INJURY LAWYERS

The LAT is still subject to the law. This includes the people responsible for enforcing and upholding the law. Especially in cases in which you are seeking statutory accident benefits, it is critical to ensure that the LAT decides your case in accordance with the law and not questionable “unwritten” procedures that compromise the independence of its adjudicators.

To learn how our Ontario accident benefits lawyers may be able to assist you, call 1-800-JUSTICE and receive a free initial consultation with Preszler Injury Lawyers.