A recent Divisional Court of Ontario decision to set aside a ruling made by a provincial Licence Appeal Tribunal (LAT) adjudicator after the crash victim’s counsel received an anonymous letter is a serious matter.
Steve Rastin, managing partner with Rastin Trial Lawyers, says he’s surprised the Divisional Court ruling isn’t receiving more attention. “I hope the new provincial government looks at this, because there’s an opportunity to find efficiencies, provide the public with better access to justice, and avoid these kinds of interferences.”
Canadian Lawyer reports that the letter — which was sent to a plaintiff personal injury lawyer after the adjudicator determined that a woman involved in a 2012 vehicle crash was not catastrophically impaired — allegedly contained details around how the adjudicator came to that decision.
The letter stated that the LAT adjudicator allegedly changed the wording in the decision after it was reviewed by her boss, the executive chair of the Safety, Licensing Appeals and Standards Ontario, to rule that the victim was not “catastrophically impaired” by her injuries and thus did not qualify for a larger award.
Rastin, who was not involved in the matter and comments generally, says there allegedly was an unwritten policy that the executive chair put in place to review and comment on all decisions.
“There are emails allegedly showing an exchange in which the adjudicator thanks the chair for her input and says she’s making the suggested changes,” he notes. If true, this type of undue influence is an affront to the entire judicial process, Rastin says.
“For accident victims, LAT adjudicators are effectively judges. And there is a long-standing edict in Canada that judges are independent. That’s why they are appointed for life, to remove any hint of political interference,” he says.
“In the case of the LAT, the adjudicator’s position is a per diem appointment. The executive chair is responsible for hiring adjudicators. If the allegations are true, there’s an appearance of pressure to render decisions in line with what the executive chair wants — but this is someone who was not at the hearing and never heard any of the testimony,” Rastin says.
He says it’s akin to Ontario’s attorney general asking a Superior Court judge to send a copy of a draft judgment and then makes changes to ensure it complies with government policy.
“It is the role of the judiciary to make decisions independently based on the law and the evidence,” Rastin says. “Sometimes they are correct in law but unpopular with the public and politicians — but that’s their role, and it is one of the ways we affect change in our society.” Rastin says this is why, in his previous role as president of the Ontario Trial Lawyers Association, he strongly opposed the move from the courts to the LAT.
“This issue is concerning for all involved,” he says. “The system for motor vehicle accident injuries isn’t working, and the solutions being proposed aren’t working either. The issue is that we’ve had no-fault insurance for 25 years and we keep applying Band-Aid solutions to cover up the problems.”
He says Ontario remains one of the only jurisdictions with such a high threshold that a plaintiff has to meet to win an adequate award of compensation.
“Fall short and there’s a $40,000 deduction, so you really get nothing,” Rastin says. “Other jurisdictions have much simpler processes. In the U.S. or British Columbia, for example, trials take a few days.
“In Ontario, it’s three to six weeks. It’s incredibly complex, expensive, and protracted. The best thing our new government can do is start again with a straightforward system as they do elsewhere. It would save time and money, reduce the strain on the courts, and provide people with more access to justice.”