A ‘startling turn of events’: Judge rules case points to improper influence in Ontario auto insurance disputes | National Post

Mary Shuttleworth was the front seat passenger in her friend’s Pontiac Sunfire on a winding Ontario country road early one rainy morning in 2012 when a pickup truck came around a corner, clipped it on the front headlight, and sent it spinning into a ditch, where it landed “with the nose pointed up, looking at the stars.”

The airbags deployed. Her head was pinned between the seat and the door frame, and rescuers had to use the Jaws of Life to get her out. It was her 49th birthday.

Today, nearly six years later, the physical toll of a traumatic brain injury, soft tissue injuries and post-concussive syndrome has left her unable to work, with frequent nausea and vertigo, and fearful of becoming a burden to her family.

But when a newly constituted Ontario government tribunal considered whether her injuries were “catastrophic” — in the first such case to come before it after major reform of the auto insurance industry — the controversial outcome has thrown Ontario’s no-fault car insurance regime into confusion.

Thanks to an anonymous letter mailed to Shuttleworth’s lawyer, Gary Mazin, alleging improper influence in the Licence Appeal Tribunal, a judge has found there is reasonable basis to believe the decision to deny Shuttleworth benefits “did not reflect the independent decision of the adjudicator.”

According to the letter, the adjudicator initially decided to approve Shuttleworth’s benefits, only to have the denial ordered from on high by the adjudicator’s boss.

“Justice must not only be done; it must be seen to be done,” wrote Justice Julie A. Thorburn.

Shuttleworth’s denial of coverage was therefore overturned and sent back for a new hearing. This decision is likely to prompt a flurry of new lawsuits alleging improper influence in the denial of benefits, according to Mazin.

One legal industry commentary called the decision a “startling turn of events.”

The tipster’s letter included information that could only be known to an insider, and it claimed the adjudicator of Shuttleworth’s case, Susan Sapin, originally decided that Shuttleworth’s injuries really were “catastrophic,” which under the law means a 55 per cent impairment of the “whole person,” as judged by a scorecard system.

The letter claimed Sapin’s boss, Linda Lamoureux, executive director of the tribunal’s parent organization, Safety, Licensing Appeals and Standards Ontario, “changed the decision,” and that as a result, Sapin “hesitated to sign this order.”

That led Mazin to file an access to information request for the tribunal’s internal communications about the case and policies on how decisions are made. That request turned up correspondence between Lamoureux and Sapin reflecting a lengthy back-and-forth process of consultation and revision, which was initiated by Lamoureux.

Justice must not only be done; it must be seen to be done

Thorburn found that the process of adjudicating cases like this can fairly involve consultation with colleagues, and that an adjudicator’s boss commenting on a decision does not necessarily prove that there was improper influence. But, in this case, the adjudicator appears to have learned of the executive director’s review of the case after it happened, and without asking for it.

“I make no finding of any actual impropriety having occurred on the facts of this case,” Thorburn wrote. There was no proof that Lamoureux “did anything to force” Sapin to change her decision. But the process by which it was decided “did not meet the minimum standards required to ensure both the existence and the appearance of adjudicative independence of the adjudicator’s decision.”

Unless the consultation process is voluntary and clearly limited to advice, as opposed to control, there will always be a “reasonable basis to believe that the decision did not reflect the independent decision of the adjudicator,” the judge found.

In an interview Monday, Shuttleworth said she has already begun the evaluation process again.

Since 1990, Ontario has had no-fault insurance, which took these disputes out of the civil courts and means that every car insurance policy in the province offers benefits regardless of who was at fault.

Until 2016, these kinds of disputes between insured people and insurance companies were heard by a different tribunal of the Financial Services Commission of Ontario.

As the first case about catastrophic injuries under the new LAT tribunal, Mazin said there was likely concern about the kind of message the decision might send about whether the tribunal is sympathetic to claimants or insurance companies.

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