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Did a whistleblower cause the reversal of an Ontario car insurance decision?

Driving.ca logo Driving.ca 2018-07-11 Lorraine Sommerfeld
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If you’ve ever had a disagreement regarding an automobile insurance payout, maybe you should pay attention to this article. If you’re one of the applicants to the Ontario Licence Appeal Tribunal (LAT) – nearly 6,000 in its first year alone –  seeking damages from an insurance company following an auto collision, then maybe your lawyer should be paying attention. And, if you’re one of those rare few who have actually filed what is called a catastrophic injury claim against a auto insurer, well then can I suggest that you and your lawyer start taking notes. Indeed, if you’re one of the former, your whole life could be turned around by a recent ruling by an Ontario Divisional Court in Toronto.

A little background: In Ontario, as of April 1, 2016, the Licence Appeal Tribunal (LAT) effectively became the last stop for those seeking auto claim damages damages. It replaced the Financial Services Commission of Ontario (FSCO) in an effort to expedite the tribunal process, though, in a decision handed down by a provincial Divisional Court on June 20, 2018 — Mary Shuttleworth v. Licence Appeal Tribunal, 2018 ONSC 3790 — it appears the LAT might be operating more like a steamroller than a streamliner. The provincial Court set aside the LAT decision, finding that the tribunal failed to follow the proper rules to ensure the independence of the tribunal adjudicator.

On September 28, 2012 Mary Shuttleworth was the passenger in a car hit head on by another, causing her severe physical and psychological injuries. Prior to 1990 in Ontario, crash victims like Shuttleworth would have been left to a traditional tort system — i.e. a lawsuit claiming damages over and above the amount awarded — in the courts to seek redress. Put simply, she would have had to sue. Changes to the Insurance Act in 1990, however, instituted a no fault process, with each party involved receiving claims payouts from their own insurance company regardless of who caused the damages.

Why does this matter? Those changes to the insurance act made it easier and faster to get claims paid out. But they also put stringent time and money limits on what those amounts could be. For someone like Mary Shuttleworth, the ensuing battle to prove her injuries would become yet another nightmare. She did receive statutory accident benefits (SAB) from her insurer, Peel Mutual Insurance Company, as per the standards chart. But Shuttleworth’s injuries were deemed catastrophic by an assessor and Peel Mutual, for its part, disagreed. At an impasse, the two parties took their case to the provincial governing body – the aforementioned LAT.

On paper, sorting catastrophic injury is like some callous Scrabble game. You get so many points for each injury, until you hopefully (tragically?) reach 55 per cent. Results are rounded to the nearest 0 or 5, so 38 would become 40, etc. The dueling scores for Shuttleworth’s Whole Person Impairment (WPI) varied 40 per cent as per her insurance company to said minimum 55 per cent from an independent (rounded up from 54). With access to two million dollars hanging on that difference, the LAT’s adjudicator on the case, Susan Sapin, took on increasing importance.

This case was important on several levels, and not just Shuttleworth’s. Ontario’s auto insurance industry has been a political hot potato for decades, and the newly ousted Liberals were jammed into a corner by the NDP to bring down rates. Critics – and I’ve been one – say slashing the product (benefits) to appear to be finding savings leaves victims worse off than before. We were told they’d be going after fraud, but, instead, it appeared they were finding savings by reducing payouts to those truly injured. A year after the LAT’s inception, complaints arose in the legal community that using measures like very rarely awarding legal costs and extremely rigid guidelines accompanied by a fee to apply were compromising victims’ access to fair hearings.

Mary Shuttleworth’s case would be the first catastrophic injury decision to come before the LAT. All eyes were on this decision. The LAT adjudicator found Shuttleworth’s WPI to be 51; two small points – a 53 would have been rounded up to the critical 55 — would have made the difference. Shuttleworth did not appeal.

And that might have been then end of it, until Shuttleworth’s lawyer, Gary Mazin, received an anonymous note: “I have heard from reliable source that the Sapin’s initial decision was that this was a catastrophic impairment. This decision then went up for review and the Linda Lamoureux changed the decision to make the applicant not catastrophically impaired. Thought you should know that the decision was not made by an independent decision maker who heard the evidence. I was also told that Sapin hesitated to sign this order.”

Now, while the provincial court’s final decision ruled that this note was double hearsay, it was admitted into evidence to explain why it was enough for attorney Mazin to make an access to information request to ascertain what, if any, communications took place between Sapin and Lamoureux that might be prejudicial to Sapin’s decision. He found two emails that led him to believe the adjudicator had been pressured into changing her decision.

This one, dated April 11, 2017, was from the LAT adjudicator Sapin to SLASTO executive chair Lamoureux:

“I just wanted to thank you for your helpful review of this decision and to let you know that I have met with and am working on revising it (for the umpteenth time, this was not first draft!) to re-organize it a bit, tighten it up and clarify some points in keeping with your suggestions.  And try to make it shorter…

I also wanted to point out that this will take more time, and although I will do my best to meet recent deadlines for this and my three other decisions, I just wanted to advise in advance that the deadlines may be affected somewhat. 

I look forward to discussing this decision with you.”

Lamoureux responded: “Susan, thank you for your note.  This is a complex case.  I had the benefit of reading it after a great deal of work on your part and after legal review.  I recall stopping by your desk on a few occasions where you indicated you were struggling with a CAT case – no wonder given the issues at play.  I do appreciate your understanding and willingness to work with legal and myself to ensure the best possible decision.”

The pulse point of the Shuttleworth case isn’t that the adjudicator asked for and received guidance, as per the decision of the court, but that “the consultation must be limited to questions of policy and law. Members of the organization who have not heard the evidence cannot be allowed to re-assess it.”

More importantly, the takeaway here isn’t that adjudicators don’t ask for and receive input from other places, but that “the consultation proceeding cannot be imposed by a superior level of authority within the administrative hierarchy, but can be requested only by the adjudicators themselves.”

One other nugget buried in the decision bears highlighting: “When comments come back to adjudicators from the executive chair, they are being made by a person with authority over the adjudicator’s reappointment.” It may be worth remembering here that, Linda Lamoureux is not just in charge of the Licencing Appeal Tribunal, but is the executive chair of The Safety, Licencing Appeals and Standards Tribunals Ontario (SLASTO) which, besides the LAT, overseas the Animal Care Review Board, Fire Safety Commission, Ontario Civilian Police Commission and the Ontario Parole Board.

The result is the court ruling set aside the decision and awarded a new hearing (plus $12,000 in costs) not because it was proven that the adjudicator’s decision had been compromised, but because “the decision in this case was subjected to a peer review process that did not contain the required safeguards of adjudicative independence.”

The LAT – the provincial governing body that all Ontarians must trust in the worst of times – needed a win on its first big catastrophic injury decision. Instead it appears they reached too far trying to secure it. The decision will no doubt trigger others doing what Mazin did for his client: seeking freedom of information requests to see how transparently decisions were arrived at.

Indeed, the best conclusion to this case might come in Lamoureux’s own words, “This is an important decision, one that will be referenced.  I suspect it will receive a great deal of attention.” In the end, justice must not just be done; it must also be seen to be done.  

At time of publication, attempts to reach Ms. Sapin have not been successful.

The following statement was received from SLASTO: “It is LAT’s position that members’ participation in the peer and legal review process is a resource for adjudicators. It provides a key element of adjudicator training and development, and ensures consistent quality decision-making. Further, this process assists in avoiding unnecessary reconsiderations, reviews, judicial reviews and appeals, thus minimizing complexity and costs to the parties.

Out of respect for the Court’s decision, we will document the process and remind our adjudicators that they are free to accept or reject comments generated through the review process as they are non-binding and for consideration only.”

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