Revisiting the Decision-Review Process at the Licence Appeal Tribunal

In the recent decision, Mary Shuttleworth v. Licence Appeal Tribunal, 2018 ONSC 3790, the Divisional Court affirmed that justice must not only be done at administrative agencies, but must also be seen to be done.

Ms. Shuttleworth sought judicial review of a decision of the Licence Appeal Tribunal (“LAT”) which determined that she was not entitled to “catastrophic impairment” benefits under the Statutory Accident Benefits Schedule (“SABS”). In the judicial review application, Ms. Sutthleworth claimed that the LAT’s process was procedurally unfair and created a reasonable apprehension of bias as her decision was not made by an independent decision-maker. The Divisional Court ultimately determined that the decision should be set aside in light of internal consultation having been imposed on the LAT decision-maker by a superior level of authority within the administrative hierarchy. Although the Divisional Court made no finding of any actual impropriety having occurred, the consultative decision-review process followed by LAT was found to not meet the minimum standards required to ensure both the existence and the appearance of adjudicative independence.