Case summary— Doing justice: Safeguards maintained for adjudicative independence

In Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518, the Ontario Court of Appeal reiterated that peer review processes for administrative decision-making must be accompanied by robust protections to safeguard independence.

Background

Shuttleworth applied for compensation after suffering a severe injury in a car accident. When the insurer did not agree that the injury met the threshold for a catastrophic impairment, Shuttleworth sought a hearing before the License Appeal Tribunal. The LAT found that the threshold was not met. The lawyer representing Shuttleworth later received an anonymous letter stating that the decision issued by the LAT adjudicator was reviewed and varied by the executive chair of the Safety Licensing Appeals and Standards Tribunal Ontario (SLASTO). Shuttleworth sought judicial review.

The divisional court did not find that there was any actual impropriety. However, the decision made by the LAT adjudicator was still set aside. The Divisional Court was not satisfied that the decision-making process before the LAT met the minimum standards for ensuring both the existence and appearance of adjudicative independence. The Court of Appeal agreed.

Decision

In a trilogy of earlier cases,1 the Supreme Court of Canada set out the general parameters for institutional consultation. Consultation regarding an administrative decision does not create an appearance of diminished independence when the following rules are followed:

• the consultation cannot be imposed by a superior authority within the administrative hierarchy and must be voluntary on the part of the adjudicator;
• the consultation must be limited to questions of law or policy; and
• even where the question is one of law or policy, the adjudicator must remain free to make its own decision.2

After considering those parameters, the Court of Appeal concluded there was a reasonable apprehension that the LAT lacked independence when it made the decision under review. It identified three main concerns:

• First, the LAT adjudicator was expected to submit the decision to the review process. The legal department – as part of its general practice – sent decisions to the executive chair of SLASTO for review without the prior knowledge or permission of adjudicators.3 By delivering comments on the decision without obtaining permission from the LAT adjudicator, the executive chair had imposed the review process.
• Second, the executive chair of SLASTO exercised authority over the LAT adjudicator. In order to secure reappointment, an adjudicator was required to obtain a recommendation from the executive chair. This power over reappointment was a potential risk to the independence of LAT adjudicators.4
• Third, the review process lacked procedural safeguards. There was no written policy protecting the right of an adjudicator to decline review. Also absent was any recognition that the review process was voluntary. Finally, there was a general expectation that decisions from the LAT would be subject to review by the executive chair of SLASTO – a superior authority.5

Takeaway

By giving effect to the rules established by the Supreme Court of Canada in its trilogy of cases on the subject of institutional consultation, the Ontario Court of Appeal has reminded decision-makers that, while consultation helps to ensure consistent outcomes in the administrative justice system, any review process must be accompanied by clear and robust safeguards to ensure adjudicative independence. Safeguards are necessary to ensure the existence—and the appearance – of independence for all those affected by the decision. After all, for many Canadians, justice will begin and end with an administrative decision-maker.

Jonathan Coady is a partner and Cullen Mullally is a summer student with Stewart McKelvey.