Car crash victim's bid for a multi-million dollar payout gets new life after court ruling
Decision could impact the way all provincial tribunals operate
A judge's finding that the head of a provincial government agency meddled in an insurance claim brought by a woman seriously injured in a car crash is grabbing the attention of other ruling bodies Ontario-wide.
The case is peppered with odd twists and turns, including a mysterious tipster and accusations of decision-rigging levelled by the victim's lawyer, Gary Mazin.
"Literally all tribunals in Ontario are affected by this decision," he said in an email to CBC Toronto. "Effectively, thousands upon thousands of past decisions can now be potentially set aside."
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The results of the case will be reviewed at this week's meeting of the Toronto Local Appeal Body.
It all stems from a car accident back in 2012, near Dundalk, Ont.
Mazin's client, Mary Shuttleworth, was riding to work in the passenger seat of a friend's car when they were hit head-on by a pickup truck.
Shuttleworth had to be cut free of the wreckage; she had back and brain injuries, as well as other neurological problems and mental impairment so severe that, she says, she could no longer work.
That caused even more stress, she told CBC Toronto. She can now walk, she said, but with difficulty.
But when she approached her insurance company, Peel Mutual, about payments, she was told her injuries didn't meet the "catastrophic" threshold, which would have made her eligible for about $2 million in payments.
Instead, according to Mazin, she was offered about $86,000.
Shuttleworth and Mazin appealed the insurance company's decision to the then-new License Appeal Tribunal (LAT), a provincial government agency set up to adjudicate disputes been insurance companies and injured drivers.
Legally, victims have to prove that they've suffered impairment to 55 per cent of "the whole person" in order to hit the catastrophic threshold, and qualify for the multi-million-dollar payment.
Mazin presented testimony to LAT adjudicator Susan Sapin that his client had indeed met that threshold. But Peel's expert disagreed, saying Shuttleworth's impairment was only about 40 per cent.
Claim was denied
In the end, Sapin sided with the insurance company expert and Shuttleworth's claim was denied.
That's likely where things would have ended, according to Mazin. But then, a couple of months after Sapin's ruling, he received an anonymous letter in the mail.
That letter accused Sapin's boss, Safety, Licensing Appeals and Standards Tribunal chair Linda Lamoureaux, of interference in the decision.
"I have heard from reliable source that Sapin's initial decision was that this was a catastrophic impairment," the anonymous tipster wrote. "Linda Lamoureaux 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."
"Completely rigged," is how Mazin described the decision-making process. "This was frankly mind-blowing."
Ruling 'reviewed' by adjudicator's boss
Even more significant, he said, was the fact that this was LAT's first ruling on an insurance case, and it was important for the agency to ensure the decision was legally sound.
Mazin applied under the province's Freedom of Information and Protection of Privacy Act for documents that could support the whistleblower's claim.
That request produced an email exchange between Sapin and Lamoureaux that, Justice Thorburn wrote, indicates Sapin's boss reviewed her ruling without being asked to do so, and that review led to changes in the ruling.
The judge also emphasizes that there is "no finding of any actual impropriety having occurred."
But that's not the end of the matter.
"Justice must not only be done; it must be seen to be done," she wrote. "An informed, cautious observer would have a reasonable basis to believe that the decision did not reflect the independent decision of the adjudicator."
She overturned the LAT finding that Shuttleworth's injuries are not catastrophic, but her ruling has already been appealed, by both the insurance company and LAT, to the Ontario Court of Appeal, Mazin said, meaning a resolution could be years away.
Too ill to work
In the meantime, Shuttleworth says she cannot work, she's taking about 100 different medications, and is doing her best to carry on, with the help of her husband Peter.
"We've re-financed once, and right now we're running on some credit card debt," she said. "We're running to the edge of what I've got, where my budget's concerned.
"There's a lot of things I carry guilt from. Everybody stops their life for me, or makes special exceptions for me now. I was always the doer, I was the helper. Now I have to wait and ask for help. It's very difficult to do that when you've been the one helping the people who needed it."
Ruling has wider implications
Although the judge's ruling applies only to Shuttleworth's case, it is sounding warning bells at other adjudicating bodies across the province, Mazin said.
In Toronto, the new Local Appeal Body (TLAB), which adjudicates zoning disputes, will be discussing the ruling at its July 31 meeting.
TLAB chair Ian Lord told CBC Toronto the ruling is a timely reminder that although an adjudicator's ruling can be "reviewed," that review must happen according to set legal guidelines or risk creating more legal problems than it solves.
"How you set up a review function, how you conduct it, how you maintain independence of the reviewer over the adjudicator, that's all grist for the mill," he said Thursday.
CBC Toronto tried to reach Sapin and Lamoureaux. But the Safety, Licensing Appeals and Standards Tribunal declined interviews. Instead, the agency issued a statement about the case:
"Out of respect for the Court's decision, we will document the process and remind our adjudicators that they are free to accept or reject comments generated through the review process as they are non-binding and for consideration only."