



COURT OF APPEAL FOR ONTARIO

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

DATE: 20190621

DOCKET: C65981 and C65995

Tulloch, Hourigan and Fairburn JJ.A.

C65981

BETWEEN

Mary Shuttleworth

Applicant (Respondent)

and

Safety,
    Licensing Appeals and Standards Tribunals Ontario and

Licence Appeal Tribunal

Respondents (Respondents)

and

Peel Mutual Insurance Company

Respondent (Appellant)

C65995

AND BETWEEN

Mary Shuttleworth

Applicant (Respondent)

and

Safety,
    Licensing Appeals and Standards Tribunals Ontario and

Licence
    Appeal Tribunal

Respondents
    (Appellants)

and

Peel Mutual Insurance Company

Respondent (Respondent)

Sunil Mathai and Domenico
    Polla, for Safety, Licensing Appeals and Standards Tribunals Ontario and
    Licence Appeal Tribunal

Cynthia Verconich, for Peel
    Mutual Insurance Company

Gary Mazin and Vasiola
    Bibolli, for Mary Shuttleworth

Heard: April 24, 2019

On appeal from the order of the Divisional Court (Justices
    Julie A. Thorburn, Michael K. McKelvey, and Frederick L. Myers), dated June 20,
    2018, with reasons reported at 2018 ONSC 3790.

Hourigan J.A.:

Introduction

[1]

Mary Shuttleworth was injured in a car accident on September 28, 2012.
    In December 2014, she applied to her insurer, Peel Mutual Insurance Company
    (Peel), for a determination that her accident injuries resulted in
    impairments that met the statutory threshold for a catastrophic impairment as
    defined in the
Statutory Accident Benefits Schedule
,
O. Reg. 34/10
(the
SABS
). When the
    parties were unable to agree whether the threshold was met, she sought a
    hearing before the Licence Appeal Tribunal (the LAT). At the time, the LAT was
    a part of a cluster of tribunals known as
the
    Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO).
On
    April 21, 2017, LAT vice-chair Susan Sapin released a decision determining that
    the threshold was not met.

[2]

Approximately two months later, Ms. Shuttleworths counsel received an
    anonymous letter stating that, before the decision was released, it was reviewed
    and changed by Linda Lamoureux, the executive chair of SLASTO. The letter
    claimed that in Ms. Sapins initial decision, Ms. Shuttleworths injuries
    qualified as a catastrophic impairment, but when Ms. Lamoureux reviewed the
    decision, she altered it and determined that Ms. Shuttleworth did not meet the
    threshold. The letter also indicated that Ms. Sapin was reluctant to sign the
    decision.

[3]

Ms. Shuttleworth attempted to obtain information about the process
    followed in her case. This was met by a broad claim of adjudicative privilege
    asserted by the LAT. However, the LAT did produce some emails without
    attachments, which it relied on in support of its position that there was no
    interference with Ms. Sapins decision. Having obtained no meaningful
    information regarding the serious charges in the anonymous letter, Ms.
    Shuttleworth brought an application for judicial review.

[4]

The Divisional Court granted Ms. Shuttleworths application for judicial
    review and set aside the LATs decision. While it made no finding of any actual
    impropriety, the court held that the LATs decision-making process did not meet
the minimum standards required to ensure both the existence and
    appearance of adjudicative independence.

[5]

The LAT and SLATSO appeal the order of the Divisional Court, as does
    Peel (the appellants). They assert that the court erred in law in finding
    that there was a reasonable apprehension of lack of independence in relation to
    Ms. Sapin. As I will explain below, I do not accept this submission and would
    dismiss the appeal.

Facts

[6]

Ms. Shuttleworth suffered physical and psychological injuries as a
    result of her motor vehicle accident. A finding that she was catastrophically
    impaired would entitle her to enhanced benefits. Peels assessments determined
    that Ms. Shuttleworths impairment of the whole person (WPI) fell below the
    55% threshold for catastrophic impairment provided in the
SABS
,
while an assessment that Ms. Shuttleworth commissioned confirmed that she met
    the threshold. She applied to the LAT under s. 280 of the
Insurance Act
,
    R.S.O. 1990, c. I.8, to resolve the dispute.

[7]

To promote efficiency, the
Adjudicative Tribunals Accountability
,
Governance and Appointments Act
, 2009, S.O. 2009, c. 33, Sched. 5,
    s. 15 (
ATAGAA
), allows two or more adjudicative tribunals to be
    designated as a cluster by regulation. Until January 1, 2019, the LAT was
    part of SLASTO.
[1]

Ms. Lamoureux was appointed as executive chair
    of SLASTO, pursuant to s. 16 of
ATAGAA
.
The LAT acquired jurisdiction over disputes in respect of the
SABS
on April 1, 2016. Ms. Shuttleworths case was the
    first catastrophic impairment decision that the LAT was to release.

[8]

On April 21, 2017, Ms. Sapin ruled that Ms. Shuttleworths WPI was 51%
    and that Ms. Shuttleworth was, therefore, not catastrophically impaired. If Ms.
    Shuttleworths WPI was assessed at 53%, it would have been rounded up to 55%
    and she would have been found catastrophically impaired. Ms. Shuttleworth did
    not request a reconsideration of the decision and did not appeal.

[9]

Approximately two months after the decision was released, Ms.
    Shuttleworths counsel received an anonymous letter advising that the decision
    was reviewed and changed by Ms. Lamoureux before its release. The letter
    stated:

I have heard from reliable
    source that Sapins initial decision was that this was a catastrophic
    impairment. This decision then went up for review and the ED 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.

[10]

After receiving the anonymous letter and being denied further
    information by the LAT, Ms. Shuttleworths counsel made an access to
    information request. In response to that request, the LAT refused to produce
    the drafts of the decision, which could have resolved the issue. Instead, it
    made limited disclosure, including of internal emails. The respondent did not
    pursue further disclosure.  In one email of particular note, dated April 11,
    2017, Ms. Sapin wrote to Ms.
Lamoureux as follows
:

I just wanted to thank you for your helpful
    review of this decision and to let you know that I have met with Liz and am
    working on revising it (for the umpteenth time, this was
not
a
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 Karens recent deadlines for
    this and my three other decisions, I just wanted to advise in advance that the
    deadlines may be affected somewhat.

[11]

Ms.
Lamoureux
responded the same day, she wrote:

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. You must be a fan of Justice Laskins
    as he takes a similar approach. This is an important decision, one that will be
    referenced. I suspect it will receive a great deal of attention.

Although I am concerned about the delay already
    experienced by the applicant and the further delay that will ensue because of
    my comments, I do appreciate your understanding of the importance of ensuring
    quality decision writing, and your willingness to accept constructive
    feedback. At the end of the day, the people we serve benefit.

[12]

On June 21, 2017,
Ms. Shuttleworth
filed an
    application for judicial review. She argued that the LAT had failed to remain
    neutral in its decision-making process and sought an order reversing the
    decision or referring the matter back to the LAT for a rehearing.

[13]

On
    the application for judicial review, Benson Cowan, Head of Legal Services for
    SLASTO, affirmed an affidavit explaining the LATs decision review process. His
    uncontested evidence was that an adjudicator is expected to send the decision
    for peer review upon completing the draft. However, there was no means to
    compel adjudicators to participate and no means to prevent an adjudicator who
    declined to participate from releasing the decision. According to Mr. Cowan, in
    some situations, the review proceeds through a total of four phases: (1) peer
    review by the duty vice-chair; (2) legal review by the SLASTO Legal Services
    Unit; (3) a second peer review by the executive chair; and (4) a review by the
    files case management officer. The Legal Services Unit would only send the
    decision to the executive chair in rare instances such as when a decision
    involved a novel, contentious, precedent-setting, or high profile issue.

[14]

Finally,
    Mr. Cowan provided some evidence about the operation of the peer review process
    in the case at bar. He stated that the adjudicator submitted her decision for
    peer review by the duty vice-chair and then to the Legal Services Unit for
    legal review. Mr. Cowan sent the decision to the executive chair for review
    because it was the first catastrophic impairment decision that the LAT was
    going to release.

Decision of the Divisional Court

[15]

The
    Divisional Court accepted that an adjudicators discussion of a draft decision
    with colleagues does not in and of itself breach the rules of natural justice.
    It relied on
Khan v. College of Physicians & Surgeons of Ontario
(1992), 9 O.R. (3d) 641 (C.A.), for the principle that some outside influence
    on reason writing is permissible and accepted. However, the court emphasized
    that the institutional consultation procedure must be designed to safeguard a
    decision-makers ability to independently decide the facts and the law. It
    relied on
Ellis‑Don Ltd. v. Ontario (Labour Relations Board)
,
    2001 SCC 4, [2001] 1 S.C.R. 221, at para. 29, for the propositions that the
    consultation procedure cannot be imposed by a superior level of authority,
    consultation must be limited to questions of policy and law, and
    decision-makers must remain free to decide independently even on questions of
    policy and law.

[16]

The
    Divisional Court was unable to find that the adjudicator lacked actual
    independence. It held that, as Ms. Shuttleworth elected not to cross-examine
    Mr. Cowan, there was no evidence to refute his evidence that the reviewers do
    not question the facts and evidence and do not comment on the policy choices or
    outcome, that there is no means to compel adjudicators to participate in peer
    review, or that the adjudicator has complete discretion to accept or reject any
    suggested revisions. This evidence, coupled with the presumption of regularity
    that applies to administrative proceedings, meant that Ms. Shuttleworth failed
    to prove a lack of actual independence.

[17]

Notwithstanding
    the foregoing, the Divisional Court concluded that there was a reasonable
    apprehension of a lack of independence. The LAT breached the rule of
    consultation from
Ellis-Don
because the executive chair imposed a
    review that was not requested by the adjudicator. The court emphasized that
    peer review or other consultative processes must be accompanied by robust
    protections to safeguard adjudicative independence. It stressed that there was
    no formal or written policy protecting the adjudicators right to decline to
    participate in a review by the executive chair or make changes proposed by the
    executive chair. The court found the absence of this policy significant
    because ss. 7-8 of
ATAGAA
required it and because its existence would
    safeguard the appearance of propriety. Accordingly, it concluded that the LAT
    subjected the decision to a peer review process that lacked the required
    safeguards of adjudicative independence.

[18]

It
    is important to note that, in reaching its conclusion, the Divisional Court
    made a number of factual findings about the review process, none of which are
    challenged on appeal:

(1)

The SLASTO
    Legal Services Unit generally sent decisions to the executive chair without
    assent or input from the adjudicators;

(2)

In this
    particular case, the adjudicator did not request the consultation with the
    executive chair and the executive chair only informed the adjudicator of her review
    after it had already taken place;

(3)

There was
    no formal or written policy protecting the adjudicators right to decline to
    participate in the review by the executive chair or to decline to make changes
    proposed by the executive chair;

(4)

A manual describing
    the tribunals procedure made no reference to the voluntariness of the peer
    review process; and,

(5)

By virtue
    of reappointment powers granted to the executive chair under s. 14(4) of
ATAGAA
,
    she exercised a superior level of authority within the administrative
    hierarchy.

[19]

In
    the result, the Divisional Court granted Ms. Shuttleworths application, set
    aside the adjudicators decision, and referred the matter back to the LAT for a
    new hearing.

Analysis

[20]

The
    appellants submit that the Divisional Court erred by: (a) incorrectly articulating
    and applying the test for reasonable apprehension of bias; (b) wrongly applying
    the trilogy of Supreme Court of Canada cases involving the preparation of
    reasons by administrative tribunals; (c) mistakenly finding that ss. 7 and 8 of
    the
ATAGAA
required SLATSO to have written consultation procedures; (d)
    failing to conduct a holistic analysis as mandated by
Khan
; and (e)
    conducting an incorrect analysis regarding reasonable apprehension of lack of adjudicative
    independence in relation to Ms. Sapin. These issues will be considered below.

(a)

Test for a Reasonable Apprehension of Bias

[21]

In
    the overview section of its reasons, the Divisional Court stated, 
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.

[22]

The
    appellants submit that the Divisional Court misapplied the test for reasonable
    apprehension of bias by introducing the concept of a cautious observer. This,
    they argue, is novel and inconsistent with the test for reasonable apprehension
    of bias articulated in
Valente v. The Queen
, [1985] 2 S.C.R. 673, which
Ellis‑Don

confirms applies to the tribunal context.

[23]

The
    test for a reasonable apprehension of bias or lack of independence in respect
    of an administrative tribunal is whether the apprehension is a reasonable one,
    held by reasonable and right minded persons, applying themselves to the
    question and obtaining thereon the required information:
IWA v.
    Consolidated‑Bathurst Packaging Ltd.
, [1990] 1 S.C.R. 282, at p.
    334. The question is thus whether an informed person, viewing the matter realistically
    and practically  and having thought the matter through would think that it is
    more likely than not that the decision-maker would decide fairly:
Consolidated-Bathurst
,
    at p. 334. The Supreme Court recently confirmed this test in
Yukon
    Francophone School Board, Education Area #23 v. Yukon (Attorney General)
,
    2015 SCC 25, [2015] 2 S.C.R. 282.

[24]

I
    would not give effect to the appellants submission that the Divisional Court
    applied the incorrect test. The appellants seize on the Divisional Courts passing
    reference to a cautious observer. It is unfortunate that the term was used,
    as it may appear to introduce an unknown element to the test. However, on a
    review of the courts reasons as a whole, it is plain that it correctly
    articulated the test for a reasonable apprehension of a lack of independence at
    para. 50 of its reasons and cited the relevant authorities on the issue. At
    paras. 62 and 65, the court applied that test and found a reasonable
    apprehension of a lack of independence without making reference to a cautious
    observer.

[25]

In
    my view, the Divisional Court did not apply a novel test for reasonable
    apprehension of a lack of independence. Accordingly, this ground of appeal
    should fail.

(b)

Application of the Trilogy

[26]

The
    Supreme Courts trilogy of cases on consultations in the course of preparing
    reasons for a decision 
Consolidated-Bathurst, Tremblay v. Quebec
    (Commission des affaires sociales)
, [1992] 1 S.C.R. 952, and
Ellis-Don
 sets out a framework of considerations for assessing whether there is a
    reasonable apprehension of bias or lack of independence.

[27]

The
    guiding principle from the trilogy is that the decision-maker must be free to
    decide cases in accordance with his own conscience and opinions:
Consolidated-Bathurst
,
    at p. 332.
Consolidated-Bathurst
establishes that discussions with
    colleagues are permissible even though they raise the possibility of moral
    suasion, and that adjudicators are entitled to consider the opinion of their
    colleagues in the interest of adjudicative coherence: at pp. 331-33. The court
    also recognized that consultation could allow the adjudicator to benefit from
    the acquired experience of the entire board and foster coherence in the boards
    jurisprudence: at pp. 326-28. At the same time, the court concluded that any
    procedure or practice that unduly restricted independence would be contrary to
    the rules of natural justice: at p. 323. Accordingly, procedures that
    effectively compel or induce decision-makers to decide against their own
    conscience and opinions are impermissible: at p. 333.

[28]

To
    reconcile the demands of decision-making by administrative tribunals with
    procedural fairness, the court held that full-board consultation was
    permissible if accompanied by appropriate safeguards. As Gonthier J. stated,
    the question is whether the safeguards attached to this consultation process
    aresufficient to allay any fear of violations of the rules of natural
    justice:
Consolidated-Bathurst
, at para. 53.
Consolidated-Bathurst
establishes that the fact that the boards chair or other board members lack
    any
de jure
power to impose their opinion on other board members is
    not a sufficient safeguard, as procedures may still effectively compel or
    induce members to decide against their conscience and opinions: at p. 333.
    Accordingly, the court must examine the actual structure of the machinery
    created to promote collegiality and determine the
actual situation
prevailing in the body in question:
Tremblay
, at pp. 968 and 973 (emphasis
    in original).

[29]

The
    Supreme Court also outlined specific rules that govern the practice of
    full-board consultation. In
Consolidated-Bathurst
, the court found it
    obvious that no outside interference may be used to compel or pressure a
    decision maker to participate in discussions on policy issues raised by a case
    on which he must render a decision: at p. 332. Likewise, in
Tremblay
,
    the court found that the tribunal presidents ability to refer a matter for
    plenary discussion without the permission of the adjudicator was a sufficient
    basis to find an appearance of a lack of independence: at p. 974. As a result,
Ellis-Don
held that it was a basic principle that only the adjudicators could request
    consultation and that their superiors in the administrative hierarchy could not
    impose it on them: at para. 29. This conclusion is consistent with leading
    treatises. As Sara Blake states in
Administrative Law in Canada
, 6th
    ed. (Toronto: LexisNexis, 2017), at pp. 116-117:

A process for compulsory consultation is not acceptable. The
    decision to consult must be up to the decision makers. It should not be imposed
    on them. If they do not wish to consult, they must be truly free to choose not
    to do so. Compulsory consultation creates an appearance [of] constraint on their
    freedom to decide the case.

[30]

The
    appellants attempt to distinguish the LATs review process from the full-board
    meetings the trilogy considered on two bases. First, they submit that the
    review process was purely focused on the quality of the written decision, unlike
    the full-board meetings that involved reviewing policy choices and the ultimate
    result. Second, they submit that the same moral suasion concerns are not
    present in the review process because only a maximum of four reviewers are
    involved and it is a simple editorial exercise. I would reject these
    submissions for the following reasons.

[31]

First,
    it is inaccurate to characterize the review process as a purely qualitative or
    editorial exercise. Mr. Cowans evidence was that reviewers did comment on
    whether the correct legal test and jurisprudence has been identified and
    applied.
Ellis-Don
emphasized that the procedural safeguards were
    required to protect a decision-makers ability to decide questions of law
    independently from compulsion by other members of the tribunal: at para. 29.

[32]

Second,
    the fact that fewer people were involved in the review than in the full-board
    consultations the trilogy considered does not assist the appellants. The fact
    remains that the executive chair occupies the most superior level of authority
    within the LAT and SLATSO. It should be recalled that the executive chair
    undertakes any reconsideration of the LAT adjudicators decisions and holds
    power over the reappointment of individual adjudicators under s. 14(4) of
ATAGAA
.
    That subsection provides:

Chair to recommend appointments, reappointments

(4) No person shall be appointed or reappointed to an
    adjudicative tribunal unless the chair of the tribunal, after being consulted
    as to his or her assessment of the persons qualifications under subsections
    (1) and (2) and, in the case of a reappointment, of the members performance of
    his or her duties on the tribunal, recommends that the person be appointed or
    reappointed.

[33]

The
    appellants submit that the moral suasion concern related to the executive
    chairs power over reappointment would be equally strong even if the
    adjudicator requested review by the executive chair. This submission should be
    rejected. As
Tremblay
and
Consolidated-Bathurst
recognize,
    adjudicators are more likely to feel free to decide according to their own
    conscience and opinions if the consultation occurs at their own request:
Consolidated-Bathurst
,
    at pp. 334-335 and
Tremblay
, at p. 974.

[34]

Third,
    it is also important to note that this court and other courts have found the
    principles from the trilogy on full-board consultation relevant to cases
    dealing with other review processes for draft decisions. In the context of
    review of draft reasons by counsel to a disciplinary committee, this court in
Khan
relied on
Tremblay
for the principle that compulsion to consult with
    others may cause the appearance of independence to be lost:
Khan
, at pp.
    673-74. Similarly, in
Bovbel v. Canada (Minister of Employment and
    Immigration)
, [1994] 2 F.C. 563 (C.A.), the Federal Court of Appeal relied
    on
Consolidated-Bathurst
and
Tremblay
to evaluate whether the
    Immigration and Refugee Boards practice of encouraging board members to submit
    their reasons for review by staff lawyers gave rise to a reasonable
    apprehension of bias.

[35]

I
    would therefore reject the submission that the Divisional Court erred in its
    application of the trilogy.

(c)

Written Procedures

[36]

The
    appellants submit that the Divisional Court erred in holding that the absence
    of a written peer-review policy was significant on the basis that ss. 7-8 of
ATAGAA
required such a policy. These sections provide as follows:

Member accountability framework

7 (1) Every adjudicative tribunal shall develop a
    member accountability framework.

Contents

(2) The member accountability framework must contain,

(a) a description of the functions of the members,
    the chair and the vice-chairs, if any, of the tribunal;

(b) a description of the skills, knowledge,
    experience, other attributes and specific qualifications required of a person
    to be appointed as a member of the tribunal;

(c) a code of conduct for the members of the
    tribunal; and

(d) any other matter specified in the regulations
    or in a directive of the Management Board of Cabinet

Approval

(3) The member accountability framework must be
    approved by the tribunals responsible minister.

Publication,
    Amendment and Review of Public Accountability Documents

Publication of public accountability documents

8 Every adjudicative tribunal shall make its public
    accountability documents, approved as required by section 3, 4, 5, 6 or 7, as
    the case may be, available to the public.

[37]

The
    appellants argue that the text of s. 7 of
ATAGAA
does not include a
    requirement for a written peer-review policy and that SLASTO has adopted all
    the required documents. Their position is that the documents codify the
    principle of adjudicative independence and address the roles of members and vice-chairs
    in the peer-review process. Nor, they argue, does the case law demand a written
    peer-review policy. They note that in

Consolidated‑Bathurst

and
Ellis-Don
, the Supreme Court upheld the Ontario Labour
    Relations Boards practice of full-board consultation even though the board
    lacked a written policy codifying the procedural safeguards in that process.

[38]

I
    accept that ss. 7-8 of
ATAGAA
do not require SLATSO to publish a
    written peer review policy. Section 7(2) of
ATAGAA
only requires a tribunal
    to describe the functions of the members, the skills and qualifications
    required to be appointed a member, and a member code of conduct. SLATSO did
    publish a code of conduct, as well as descriptions of the vice-chair and member
    positions. The appellants are also correct that the Supreme Court upheld the
    Ontario Labour Relations Boards practice of full-board consultations in

Consolidated-Bathurst
and
Ellis-Don
despite the Boards lack of a written policy governing
    those consultations, and that the Supreme Court found a reasonable apprehension
    of bias in
Tremblay
even though there was a written policy that
    protected adjudicative independence.

[39]

Despite
    the foregoing, the Divisional Court was still entitled to find the absence of
    such a policy significant when it considered the adequacy of LATs procedural
    safeguards. The absence of a formal policy protecting the adjudicators right
    to decline to participate was significant in an environment where the procedure
    manual made no reference to the voluntariness of review by the executive chair
    and Mr. Cowans own evidence was that adjudicators were expected to participate
    in the review process. While Mr. Cowans evidence was that there was no means
    to compel adjudicators to participate, he did not give evidence that SLATSO
    communicated to adjudicators that they were free not to have their drafts
    reviewed by the executive chair. The principal safeguard the appellants point
    to is the executive chairs inability to lawfully compel the adjudicator to
    change her mind. However,
Consolidated-Bathurst
establishes that this
    is not a sufficient safeguard: at p. 333.

[40]

Further,
    the absence of a written policy on full-board consultations in
Consolidated-Bathurst
and
Ellis-Don
and its presence of such a policy in
Tremblay
do not assist the appellants. The Ontario Labour Relations Boards practice of
    full-board consultations was well-known to board members and litigants before
    the board, as it was described in a 1971 government report and in legal
    treatises:
Consolidated-Bathurst
, Sopinka J., dissenting (but not on
    this point), at pp. 290-91. In particular, both board members and litigants
    knew that only the hearing panel could request a full-board meeting and it
    could not be centrally imposed: Gonthier J., writing for the majority, at pp. 316-17.

[41]

In
    contrast, in this case, the Divisional Court found there was no evidence that
    adjudicators were aware that they had the right to refuse a review by the
    executive chair and that the process gave them no opportunity to refuse: at
    para. 28. 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. As for
Tremblay
, all it establishes is that a formal
    policy that protects adjudicative independence will not be an adequate
    safeguard if it is disregarded in practice: at pp. 972-73. The presence of the
    formal policy likely would have been a relevant consideration in
Tremblay
but for the evidence that the tribunal was disregarding it in practice.

[42]

The
    SLASTO code of conduct and the position descriptions for the member and
    vice-chair positions undermine the appellants position. The appellants point
    to the guarantee of adjudicative independence in these documents. However, the code
    of conduct simply states that [m]embers should be independent in
    decision-making and makes no mention of a members right to refuse a review by
    the executive chair. This provides no evidence to undermine the Divisional Courts
    finding that members were not advised of their right to refuse. Moreover, the
    member position description confirms the Divisional Courts finding that
    members were expected to submit their decisions for peer review and were not
    advised of their right to refuse. Under the heading Key Duties, the
    description states A Member, where appropriate submits draft decisions for,
    and participates in, peer and other decision reviews before they are issued in
    accordance with SLASTO policy.

(d)

Holistic Analysis

[43]

The
    appellants submission that the Divisional Court failed to apply the holistic
    approach from
Khan
is unfounded. It is important to recognize that the
    court in
Khan
did not purport to undermine the holding in
Tremblay
that imposed consultation is generally inappropriate and did not suggest that
    it is merely one factor among others. To the contrary, Doherty J.A. found
Tremblay
an appropriate starting place, quoted from it, and relied on it for the
    proposition that the result of compulsory consultation is that the appearance
    of independence may be lost:
Khan
, at pp. 673-74.

[44]

In
Khan
the court considered all of the factual circumstances of the
    case. Similarly, the Divisional Court recognized the need to look at all the
    circumstances. At paras. 38-39, it stated it was necessary to assess the
    specific circumstances and review the five factors from
Baker v. Canada
    (Minister of Citizenship and Immigration)
, [1999] 2 S.C.R. 817, to
    determine the level of procedural fairness required.

[45]

In
    addition, the review process in this case lacked the guarantees that led
    Doherty J.A. to find in
Khan
that the discipline committees use of
    counsel in the drafting process did not give rise to a reasonable apprehension of
    lack of independence. Doherty J.A. stressed that counsels involvement could
    not have had any coercive effect because counsel was the servant of the
    Committee and his involvement was not mandatory, and was entirely under the
    control of the Committee:
Khan
, at p. 674. In contrast, the executive
    chair was the superior of the adjudicator with power over her reappointment,
    not the adjudicators servant.

[46]

In
    summary, I would reject this ground of appeal on the basis that the Divisional
    Court conducted an analysis of all of the circumstances of the case. I will
    consider in the next section of my reasons the adequacy of that analysis.

(e)

Overall Analysis

[47]

The
    appellants position is that the case before the LAT was an important,
    precedent-setting matter, and that it was thus an appropriate case for the executive
    chairs limited decision review role, which is consistent with her statutory
    responsibility in s. 20(1) of
ATAGAA
to ensure the LAT performs its
    duties and functions. The appellants submit that the Divisional Courts finding
    that there was no evidence that the adjudicator did not make her decision
    independently should have led the court to conclude that the executive chairs
    review of the draft decision did not raise a reasonable apprehension of a lack
    of independence. They argue that the uncontested evidence was that peer
    reviewers do not question the facts, evidence, policy choices, or result in a
    decision, and that adjudicators have complete discretion to accept or reject
    any suggested revisions. As a result there is no danger of moral suasion of the
    kind discussed in
Ellis-Don
. Had the Divisional Court properly
    examined the facts of this case, the appellants submit, it would have found
    that a reasonable observer would conclude that the peer review adequately safeguards
    adjudicative independence.

[48]

I
    am not persuaded that the Divisional Court erred in its conclusion that there
    was a reasonable apprehension of a lack of independence on the facts of this
    case. I reach this conclusion for the following reasons.

[49]

First,
    the Divisional Court correctly found that the executive chairs imposition of
    the review on the adjudicator breached the rules set out in the trilogy. The
    Divisional Court found as a fact that the adjudicator was expected to send the
    decision for peer review: at para. 28. It also found that, as was the general
    practice, the legal department sent the decision to the executive chair without
    the adjudicators prior knowledge or assent. The adjudicator was only informed
    of the review after it had taken place: at paras. 28, 57-58. The Divisional
    Court thus correctly concluded that the Tribunal violated the rule from the
    trilogy because a superior level of authority imposed consultation on the
    adjudicator.

[50]

I
    do not agree with the appellants arguments that the Divisional Court erred in
    fact by finding that consultation was imposed. The appellants submit that the
    executive chair did not impose the review on the adjudicator because it was
    staff counsel that forwarded the decision to the executive chair. The fact
    remains that, by deciding to provide comments on the decision without seeking
    the adjudicators permission, the executive chair imposed the review on the
    adjudicator. I likewise disagree with the argument that Mr. Cowans evidence
    that the LAT lacked the legal power to force an adjudicator to participate in
    the peer review process meant that consultation was not imposed. Mr. Cowan
    forwarded the decision to the executive chair and the executive chair provided
    comments without seeking the adjudicators consent. As Ms. Shuttleworth
    submits, the adjudicators freedom to decline the review does not assist her
    because she was never given the opportunity to decline and was instead
    presented with the executive chairs review as a
fait accompli
.

[51]

Second,
    the Divisional Court found that the breach was significant because of the power
    of the SLATSO executive chair.
Consolidated-Bathurst
recognized the
    possibility that a tribunal chair could exert moral suasion over tribunal
    members: at p. 333. Similarly,
Tremblay
stressed the control the
    tribunal president exercised over the consultation process in finding a reasonable
    apprehension of bias: at p. 973-74; see also

David Mullan,
Administrative
    Law
(Toronto: Irwin Law, 2001), at p. 344.

[52]

The
    Lieutenant Governor in Council could not reappoint the adjudicator without the
    executive chairs recommendation:
ATAGAA
, s. 14(4). This power over
    reappointment is significant, as the Divisional Court found: at paras. 14-15,
    28. The New Brunswick Court of Appeal has twice held that Ministers or Members
    of the Legislative Assembly should not be permitted to represent a claimant
    before a tribunal because the tribunals members owe their re-appointment to
    the provincial cabinet:
Chipman Wood Products (1973) Ltd. v. Thompson

(1996), 181 N.B.R. (2d) 386 (C.A.);
Fundy Linen Service Inc. v. New
    Brunswick (Workplace Health, Safety & Compensation Commission)
, 2009
    NBCA 13, 341 N.B.R. (2d) 286. Legal commentators have also recognized the power
    of the executive chair and the potential danger the chairs control over
    reappointments poses to the independence of individual adjudicators: Gus Van
    Harten et al,
Administrative Law: Cases, Text, and Materials
, 7th ed.
    (Toronto: Emond, 2015), at p. 529; Mullan, at pp. 343-344.

[53]

Third,
    the Divisional Court correctly concluded that the review process lacked the
    appropriate procedural safeguards. The court stated that peer review processes
    must be accompanied by robust protections to safeguard adjudicative
    independence: at para. 66. This is consistent with the trilogy: see
Consolidated-Bathurst
,
    at p. 341. One of the factors the court considered in this regard was the lack
    of a written policy protecting the adjudicators right to decline a review.
    However, the Divisional Court considered other relevant factors in drawing its conclusion.
    At para. 28, it stressed that 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. There was thus no evidence that
    the Tribunal had ever communicated to adjudicators that they were free to
    decline to participate in a review by the executive chair and considerable
    evidence tending to show that adjudicators were expected to participate in such
    a review.

[54]

The
    Divisional Courts finding of a reasonable apprehension of a lack of
    independence was supported by the facts of this case. The Divisional Court
    found, based on the emails, that the adjudicator did make changes following the
    executive chairs comments: at para. 57. The Divisional Court further found
    that those changes were significant, as the executive chair believed they were
    important enough to justify further delay: at para. 61.

[55]

In
    addition, the executive chair became involved without the adjudicators
    consent. The Divisional Court appropriately gave weight to the fact that the
    executive chair imposed the review and the adjudicator was only informed of it
    after it took place. It considered this evidence cumulatively with the lack of
    a formal written policy to protect the adjudicators right to decline to
    participate and the lack of evidence as to the nature of the changes stemming
    from the review.

[56]

In
    summary, there is no basis for appellate interference with the Divisional
    Courts analysis of the issue of a
reasonable
    apprehension of a lack of independence. In my view, that analysis is correct.

Disposition

[57]

For
    the foregoing reasons, I would dismiss the appeal. On a new hearing before the
    LAT, Ms. Shuttleworth and Peel have agreed to rely only on evidence available
    at the time of the original hearing so no party would be in a better position.

[58]

The
    parties have agreed on costs in the event Ms. Shuttleworth is successful. Those
    costs are fixed in the all-inclusive total sums of $2,500 against the LAT and
    SLASTO, and $6,250 against Peel.

Released: C.W.H. June 21, 2019

C.W. Hourigan J.A.

I agree. M. Tulloch J.A.

I agree. Fairburn J.A.





[1]
All the tribunals formerly in SLASTO now belong to a larger cluster entitled
    Tribunals Ontario:
Adjudicative Tribunals and Clusters
, O. Reg.
    126/10.


