December 5, 2019

The independence of decision-makers when they consult with other tribunal members

Administrative Law

If a tribunal decision was apparently revised by someone with authority over the decision-maker, does such “interference” create a reasonable apprehension that the decision-maker was overridden, and lacks independence? This was the question before the Ontario Court of Appeal in Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518.

Potential interference in a decision: An accident victim, Ms. Shuttleworth, appeared before the Licence Appeal Tribunal (the “Tribunal”), on whether her injuries resulted in a “catastrophic impairment” for purposes of law. The Tribunal was part of a cluster of tribunals known as the Safety, Licensing Appeals and Standards Tribunals Ontario (“SLASTO”). The Tribunal vice-chair, S, released a decision that the threshold for catastrophic impairment was not met. However, Ms. Shuttleworth’s legal counsel received an anonymous letter stating that the decision had initially been that the threshold was met, but that the decision had been reviewed and changed by the executive chair of SLASTO, Ms. L. Ms. Shuttleworth applied for judicial review.

Decision set aside by the Divisional Court: The Divisional Court set aside the Tribunal decision, based on a reasonably apprehended lack of independence on the part of the vice-chair. Both the Tribunal and SLASTO appealed, but the Court of Appeal dismissed their appeals.

The Divisional Court held that an adjudicator discussing a draft decision was colleagues did not, in itself, breach the rules of natural justice. However, decision-makers must remain free to decide independently. [15]

The Divisional Court did not find actual bias. [16] The Head of Legal Services for SLASTO provided an affidavit provided uncontested evidence that an adjudicator is expected to send a decision for peer review; that adjudicators could not be compelled to participate; and that the Legal Services Unit sent the decision to the executive chair for review because it was the first catastrophic impairment decision the Tribunal would release. [13] Absent cross-examination of that affiant, and given the “presumption of regularity” that applies to administrative proceedings, Ms. Shuttleworth did not prove any lack of actual independence. [16]

The Divisional Court also found, however, that the review by the executive chair occurred without the adjudicator’s request; that no formal or written policy protected the adjudicator’s right to decline to participate in the review; that a manual describing the tribunal’s procedure made to reference to the voluntariness of the peer review process; and that the executive chair exercised a superior level of authority in the administrative hierarchy, by virtue of her reappointment powers. [18] As a result, the Divisional Court set aside the decision. It reasoned that, “Justice must not only be done; it must be seen to be done. In the absence of a properly limited, voluntary consultative process, an informed, cautious observer would have a reasonable basis to believe that the decision did not reflect the independent decision of the adjudicator.” [21]

Appeal by the Tribunal dismissed: The Court of Appeal agreed. In applying the guiding principles set out by the Supreme Court of Canada (in such cases as IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282), discussions with colleagues are permissible, and adjudicators are entitled to consider the opinion of their colleagues, in the interests of adjudicative coherence. [27] At the same time, however, no outside interference may be used to compel or pressure a decision-maker to participate in discussions on policy issues. [29] Only the adjudicators may request consultation, and superiors in the administrative hierarchy cannot impose it on them. [29]

The Tribunal and SLASTO argued, but the Court did not accept, that the review process was purely an editorial exercise, and that “moral suasion” was not an issue as only four reviewers were involved. [30-32] On the latter point, the court noted that the executive chair occupies the most superior level of authority within the Tribunal and the SLASTO. [32] The executive chair could undertake a reconsideration of any decision, and also holds power over reappointment. [32]

As for written policies, the Divisional Court found no evidence that adjudicators were aware they had a right to refuse a review by the executive chair, an found also that the process gave them no opportunity to refuse. [41] “The absence of a written policy was thus significant because it confirmed that the LAT had not communicated to adjudicators that they had the right to refuse.” [41]

The grounds for a reasonable apprehension of bias: The Tribunal and SLASTO failed to persuade the court that the Divisional Court had erred:

  1. The Divisional Court correctly found that the executive chair’s imposition of the review on the adjudicator breached rules of natural justice. The review occurred without the adjudicator’s prior knowledge and consent, and a superior level of authority had imposed consultation on the adjudicator. [49]
  2. The breach was significant due to the power of the SLATSO executive, particularly a power over reappointment. [51]
  3. The Review Process lacked procedural safeguards. For example, “the procedure manual made no reference to the voluntariness of the peer review process and that there was an expectation that adjudicators subject their decisions to review.” [53] Based on emails disclosed by the Tribunal, the adjudicator did make changes following the executive chair’s comments. [54] Further, the executive chair became involved without the adjudicator’s consent. [55]

Take-away: Where tribunals processes allow for adjudicators to consult with tribunal members outside of a decision-making panel, that process cannot be compulsory. The decision to consult must be up to the decision-makers. Tribunals must also be cautious about ensuring decision-making independence where a consulting process includes someone with a higher level of authority.

Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518

Lisa C. Fong and Michael Ng