Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8549/ONHWPA
CASE NAME: 8549 v. Tarion Warranty Corporation
An Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31 – to Disallow a Claim
Appellants -and- Tarion Warranty Corporation Respondent -and- Polmat Group Inc. Added Party
ORDER
ADJUDICATOR: Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellants: Self-represented
For the Respondent: Brent Arnold, Counsel
For the Added Party: Daniel McConville, Counsel
Heard in Toronto: November 28, 2014
RULING
This is an appeal by the Appellants to the Licence Appeal Tribunal (the “Tribunal”) from Decision Letters of Tarion Warranty Corporation (“Tarion”) dated December 20, 2013, and May 28, 2014, with respect to a new home purchased from, Polmat Group Inc., the Added Party, in which Tarion denied the Appellants’ claim, in part.
BACKGROUND:
During the course of hearing this matter, on November 28, 2014, the Presiding Member invited the parties to make submissions on the issue of whether or not there was a reasonable apprehension of bias with respect to this member continuing with the hearing. This issue arose due to the following reasons:
Following the noon recess on Thursday November 27, 2014, prior to the continuation of his cross-examination, the Appellant J. F. advised the hearing that he had spoken to the Associate Chair of the Licence Appeal Tribunal over the noon recess and advised him that the Appellants felt they were being bullied. In so doing, the integrity of the Associate Chair, the entire Tribunal and its process was called into question. Consequently, the hearing was recessed. Upon resumption, the Presiding Member informed the parties, on the record, that she had satisfied herself that the Associate Chair had not had any meetings or conversations with either of the Appellants. The Appellant J.F. then acknowledged that neither he nor his spouse had actually met with or spoken with the Associate Chair, but that he had spoken to a Tribunal staff member and understood the Associate Chair had been advised by the staff member of his concerns.
The Appellant J. F. alleged that the opposing counsel and the Presiding Member were bullying him and his spouse.
After the Appellant J.F. confirmed he had not spoken with the Associate Chair, the Presiding Member noted there was distinction to be made between complaints about her conduct and an allegation of bias, and that if J.F. was alleging the Presiding Member was biased, then he should make a motion, and the Presiding Member would hear it and the submissions of all parties, and decide the issue within the hearing. The Appellant J.F. was further advised that if he had a complaint about the conduct of the Presiding Member or either of the lawyers cross-examining him, it would involve a separate process, outside of the hearing, that any party who has a concern about the conduct of an adjudicator is free to follow the Tribunal’s complaint process and the complaint would be dealt with separate from and outside of the hearing.
On resuming the hearing on the morning of November 28, 2014, the Presiding Member determined it was necessary to invite the parties to make submissions on the issue of whether or not there was a reasonable apprehension of bias given the allegations made by the Appellant J.F. on November 27, 2014, and the fact the Appellants did not bring a motion themselves.
SUBMISSIONS:
Each of the Appellants was asked to make submissions on the issue.
The Appellant A.F. stated the intention of the Appellants was not to accuse anyone of bullying her or her spouse, and that they did not and were not accusing anyone of bullying them.
Mr. Arnold, Counsel for Tarion, submitted he had not observed any conduct by the Presiding Member that gave him any concern whatsoever about bias and that he had no apprehension of bias at all. He further stated that the accusation of bullying had most definitely been made but, it was his belief, that the accusation was totally unfounded.
Mr. McConville, Counsel for Polmat Group Inc., adopted the submissions made by Mr. Arnold and stated he had no concerns regarding bias in this hearing.
Appellant J.F, who had declined to make any submissions until counsel for the other parties made their submissions, stated he had expressed his complaint about feeling bullied to an employee of the Licence Appeal Tribunal who had advised him that the Associate Chair had been informed about his complaint. J.F. stated he did feel like he was being bullied by the presence of Tarion and its lawyers, by counsel for the builder and by the Presiding Member, but that he was afraid to say he had any apprehension of bias because he did not want to have to start the hearing anew with another hearing panel.
THE DECISION:
In reviewing the submissions, neither the Respondent nor the Added Party have any apprehension of bias and the Appellants did not make any statements about any apprehension of bias in their submissions although they were given the opportunity to do so. The Appellants did not provide any evidence of any specific conduct by either the counsel or the Presiding Member to support the assertion of bullying that was expressed by the Appellant J.F. Further, his spouse, the Appellant A.F., denied feeling bullied and denied the accusation had even been made.
In conclusion, despite being given a clear opportunity to do so, neither of the Appellants provided any submissions or statements which indicated they felt the Presiding Member may be biased against them. The legal test is whether a reasonable apprehension of bias would be held by a reasonable and informed person. Actual bias does not have to be proven. Furthermore, the apprehension of bias must be objectively supported. All adjudicative tribunals are bound by the rules of natural justice, and this requires that the parties have a reasonable opportunity to be heard by an impartial adjudicator. In the process of controlling a hearing to ensure that all parties are treated impartially and all parties have a reasonable opportunity to make their case, one or more of the parties may feel unfairly treated at times. But based upon the evidence and submissions of all parties on this issue, the Tribunal cannot find any breach of natural justice, or specifically, any reasonable apprehension of bias.
The Tribunal notes that even if the legal test for bias is not satisfied, the adjudicator may voluntarily withdraw in some cases. This may be due to an abundance of caution or perhaps to be responsive to a situation where one of the parties may wish to have a new panel even though the legal test for bias is not met. In the present case, the Appellant J.F. was very clear that he did not want to begin the hearing again with a new adjudicator after ten days of hearing had already been completed. Consequently, after delivering this ruling orally, the hearing resumed and the cross-examination of the appellant J.F. was completed.
LICENCE APPEAL TRIBUNAL
Patricia L. Cassidy, Vice-Chair
Released: December 8, 2014