Ontario government won’t ‘deviate’ from fiscal plan, says new finance minister
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Scales tipped in insurer’s favour with LTD claims
Bill 100, Protecting What Matters Most Act (Budget Measures), 2019
https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-100
Background: A ‘startling turn of events’: Judge rules case points to improper influence in Ontario auto insurance disputes
Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518 (CanLII), <http://canlii.ca/t/j140m
[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. Shuttleworth’s 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. Sapin’s initial decision, Ms. Shuttleworth’s 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. Sapin’s 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. Shuttleworth’s application for judicial review and set aside the LAT’s decision. While it made no finding of any actual impropriety, the court held that the LAT’s 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.
[5] At the outset of the Pre-trial, Plaintiff’s counsel indicated that the defence has refused to negotiate possible settlement of the case. Further, Aviva agreed to engage in a mediation and took no position other than a no liability position. The Plaintiff argued that throughout the file, but most notably at the Pre-trial Conference, the Defendant’s insurer had acted in bad faith. Aviva’s position required everybody to attend the pre-trial Conference and then Aviva refused to negotiate.
[6] In response to this information I asked the defence if they were continuing with a no liability position. Counsel indicated they were.
[7] In light of the insurer’s position, I read out Rule 50.05 (2). I asked Aviva’s claims representative if she had authority to settle the case, up to policy limits if the facts supported it, or whether she had to report to a committee or an individual to obtain further instructions. I also asked her whether, if she did not have the authority, she had arranged to have an effective decision-maker available by phone, as required by the Rule.
[8] The claims examiner said two things: first, she indicated that she had not made arrangements that an effective decision-maker at Aviva was phone-ready to be contacted; and second, she confirmed that she reports to a committee for instructions.
[9] Defence counsel provided answers to the balance of my questions. She advised that the “committee” is merely an oversight committee. The claims representative before the court made recommendations based on the facts to the oversight committee. Counsel’s submissions, however, did not satisfy me that the claims examiner before the court was the, or even an effective decision-maker that had authority to settle.
[10] Rule 50.06 sets out the purposes of, and the things to be considered at the Pre-trial Conference, the first of which is the possibility of settlement. Rule 50.05 supports Rule 50.06 by requiring that the “parties” attend in person unless the Court orders otherwise, so that people present at the Pre-Trial have the ability to make decisions about the case. Where a third party liability policy protects a Defendant, the Defendant cedes control over the defence of the action to the insurer. The insurer, thus, becomes the “party” for the purposes of the rule.
[14] Based on the representations of counsel and Aviva’s claims representative’s answers to my two questions, I determine that the Defendant had not complied with Rule 50.05(2), in the circumstances of this Pre-Trial Conference. Aside from filling in the Pre-Trial Conference Report, the Pre-Trial could not consider those things listed in Rule 50.06 because Aviva’s decision maker(s) was/were not present, or available, or even defined.