The recent Divisional Court ruling in Shuttleworth v. Licence Appeal Tribunal, 2018 ONSC 3790 (CanLII), exposes many flaws in the current administrative regime designed to manage disputes over statutory accident benefits under Ontario’s no-fault auto insurance regime.
“The system is so broken,” declares Toronto personal injury lawyer Gary Mazin, of Mazin and Associates PC.
With 9.7 million Ontario drivers and more than 60,000 injuries a year due to collisions, many of which will involve some type of statutory accident benefit claim, Mazin says it is incumbent on the new Ontario government to fix the system.
Dispute over “catastrophic” classification
Mazin represented Mary Shuttleworth, a passenger who suffered physical and psychological injuries in a Sept. 18, 2012 car crash.
A dispute arose over whether her injuries amounted to “catastrophic impairment,” and her case went to an adjudicator at the Licence Appeal Tribunal (LAT).
New process: From FSCO to LAT
LAT is part of the Safety, Licensing Appeals and Standards Tribunal of Ontario, a government body of tribunals, which are overseen by executive chair, Linda Lamoureux.
Traditionally, auto cases were heard by the Financial Services Commission of Ontario (FSCO), but LAT was given jurisdiction by the former government over accident benefit disputes starting in April 2016.
Whistleblower exposes altered decision
In one of the first cases dealing with catastrophic impairment, LAT adjudicator Susan Sapin ruled that Shuttleworth fell just short of the threshold for the higher benefits, assessing her at a 51 per cent impairment score, versus the necessary 55 per cent.
Mazin says afterward, a whistleblower sent him an anonymous note advising that Sapin had originally sided with Shuttleworth in her decision, but it was changed after an internal review process involving Lamoureux.
Mazin brought an access request for more information and discovered that LAT had an unwritten review process imposed by the chair where the legal department would send Lamoureux certain rulings for her review. Emails confirmed Lamoureux had reviewed the Shuttleworth decision and Sapin told the executive director that she was “revising it.”
Judicial review: Bias in the process?
Mazin brought an application for judicial review of the ruling, arguing there was a reasonable apprehension that that ruling was not made by an independent decision-maker.
The Divisional Court held that a peer-review process alone did not create bias or a lack of independence. The court noted, however, that Sapin learned of the review after the fact and had not requested it.
That was fatal to LAT’s ruling. “There was no formal or written policy protecting the adjudicator’s right to decline to participate in review by the executive chair or to decline to make changes proposed by the executive chair.” That “created a reasonable apprehension of bias” and the court referred the case back to adjudication. The Divisional Court ruling is now under appeal.
LAT flaws “insanely troubling”
Mazin says the imposed review system highlights one of many flaws with the LAT process and puts adjudicators in an uncomfortable position.
The case amounted to “involuntary review by a boss,” he says, noting that under the regulations adjudicators can only be reappointed with the executive director’s consent. He calls that “insanely troubling,” noting it would be difficult for adjudicators to reject their boss’s suggestions.
He says that adjudicators should be protected through tenure, similar to judges and other commissions.
Another troubling aspect to LAT’s review process, he says, is that it’s the executive director who hears appeals of adjudicators’ rulings. He noted that by being involved in the review, the executive director provided input on the case. “Good luck in getting a fair appeal hearing,” he says. “The entire purpose of an appeal is to have it heard by a new person.”
Another area he finds troubling is the lack of costs. FSCO could award costs to a successful party; LAT does not, except in extraordinary circumstances, which is rare.
Negative impact for personal injury claimants
The result he says, is a system that favours insurers to dig in on SABS claims. He calls it a “huge barrier” for accident victims.
An accident victim may have a valid claim for $10,000 in benefits, he says, but they will have to spend $40,000 to recover it, and then not be awarded fees.
He says there are millions of dollars at stake in statutory benefit claims.
“What the insurance companies are doing is taking advantage of this and taking a much harder line than they used to,” he says, calling the system “grossly unfair.”
He’s not alone on this front. The FAIR Association of Victims for Accident Insurance Reform, a not-for-profit group of car accident victims and supporters, recently noted in a 2017 response to a government report on auto insurance reform, that “consideration and attention should be paid to how victims now have to shoulder legal costs at the Licence Appeal Tribunal (LAT). We are not just talking about the cost of representation; we are speaking of how victims are expected to pay the legal cost of holding their errant insurer to account.”
Mazin says another concern he has is the length of time it takes to get matters heard. Under LAT’s business plan, it strives to hear 80 per cent of cases within 30 days of a completed application. Even if it meets that standard, there are still hundreds of people who are being delayed access to money they need to pay their medical bills.
Mazin notes that it has been six years since his client was injured and they are still fighting over statutory benefits. He calls the delays at LAT “horrendous.”
He says if “you are one of the brave few who decide you are willing to spend a lot more money than a claim is worth just out of principle, you are going to have to wait a long time to do that.”