*Since this writing of this blog the decision has been appealed to ONCA and affirmed, not overturned.
The independence of the LAT’s adjudicators and indeed the LAT’s entire decision-making process has recently been called into question by the Divisional Court in the matter of Shuttleworth v. License Appeal Tribunal.
The Divisional Court heard an application for judicial review of a decision of Adjudicator Susan Sapin, a seasoned former FSCO arbitrator, and indeed a former senior arbitrator with admininstrative responsibilities as well, who determined that the Applicant, Ms. Shuttleworth, was not catastrophically impaired. Following release of the decision, Ms. Shuttleworth’s counsel received an anonymous letter stating that after Adjudicator Sapin wrote her decision, it was reviewed by the executive chair of SLASTO, who “changed the decision to make the applicant not catastrophically impaired” and that Adjudicator Sapin “hesitated” to sign the order.
Ms. Shuttleworth sought further information from the LAT and discovered that under an unwritten review process imposed by SLASTO’s Executive Chair, the legal department had sent the adjudicator’s draft decision to the Executive Chair for review before it was finalized. The Executive Chair provided comments to Adjudicator Sapin, who revised her decision before its release. The nature of the revisions was not disclosed although, arguably, they should have been.
Writing for a unanimous Divisional Court panel which included Justice Fred Myers and Justice Mike McKelvey, Justice Julie Thorburn found that the LAT’s decision-making process did not meet the minimum standards required to ensure both the existence and the appearance of independence of the adjudicator’s decision. Although there was no finding of actual impropriety (the applicant did not prove that the Executive Chair did anything to force the adjudicator to change her decision), the Court held that “an informed, cautious observer would have a reasonable basis to believe that the decision did not reflect the independent decision of the adjudicator” and should be set aside.
The LAT admitted that it has a three- to four-step review process: decisions first go to the Duty Vice-Chair, then to the LAT legal team. In this case, the legal team took the additional step of sending the decision directly to the Executive Chair, as this was a CAT decision to be released by the LAT. Finally, all decisions are reviewed by the file’s case management officer.
Notably, the LAT’s review process is not set out in any written policy document. The Adjudicative Tribunals Accountability, Governance and Appointments Act, which governs SLASTO, contains a very formal process to ensure the accountability of tribunal members and officers both internally and to the public, and requires not only that there be a written policy, but that tribunals must make all such documents available to the public.
The LAT argued that adjudicators have a choice as to whether to have their decisions reviewed by the Executive Chair and that reviewers do not comment on the adjudicator’s ultimate result. The LAT claimed that there was no obligation on an adjudicator to participate in the review process or to make suggested changes. However, the LAT admitted that adjudicators “are expected” to subject their decisions for review and decisions are sent to the Executive Chair by the legal department without any assent or input from adjudicators. Notably, the Court observed that when comments come back to adjudicators from the Executive Chair, they are being made by a person with authority over the adjudicator’s reappointment. While not noted in the decision, it is also the case that the Executive Chair also has the regulatory power to reconsider the decision after it is rendered, thereby making this initial review before the release of the decision even more questionable, and/or the reconsideration process that much more suspect as to its value.
For reasons which are unknown, Applicant’s counsel did not cross-examine the LAT’s affiant on the affidavit submitted; thus, the Court was unable to make a finding that Adjudicator Sapin did not reach her decision independently.
Ultimately, the Court held that due to the lack of a written policy, the absence of evidence of an adjudicator’s right to decline review or not to implement recommended changes, and the fact that the review was conducted by someone at a supervisory level over the adjudicator, there was a reasonable apprehension that the decision was not made independently, such that the matter should be sent back for a new hearing.
While it would be interesting to get Adjudicator Sapin’s take on this entire set of circumstances, it is interesting to note that she is no longer at the LAT.
For the full decision, see Shuttleworth v LAT: https://www.canlii.org/en/on/onscdc/doc/2018/2018onsc3790/2018onsc3790.pdf