Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-04-08
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
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:
April 1, 2015
ORDER
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 April 1, 2015, 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 after both of the Appellants made bias allegations regarding the Presiding Member. This issue was addressed and a ruling made on November 28, 2014 and again on March 17, 2015 after the Appellants brought a motion which, among other things, alleged bias. This issue arose again on April 1, 2015 after the Appellants stated, in the hearing room, that they felt the Presiding Member was biased. Consequently, the parties were, once again, invited to make submissions on the issue of reasonable apprehension of bias and, once that matter was determined, the parties were then invited to make submissions on the issue of costs for April 1, 2015.
SUBMISSIONS
a. Reasonable Apprehension of Bias
The Appellants’ submissions were that they disagree with the Tribunal’s rulings sustaining objections made by counsel for the Respondent and, essentially, since the Presiding Member is not ruling in the Appellants’ favour she is biased against them. In addition, the Appellants do not appreciate the Presiding Member admonishing their behaviour in the hearing room. Both Appellants stated they did not want to start this hearing anew, with another panel, which they understand is the consequence of a finding that there is a reasonable apprehension of bias.
Mr. Arnold, counsel for Tarion, submitted he had not observed any conduct by the Presiding Member that gave him any concern about bias and that he had no apprehension of bias. Mr. McConville, counsel for Polmat Group Inc., was not present and, therefore, was not invited to make submissions.
b. Costs
Mr. Arnold submitted the conduct of the Appellants, in requiring this issue to be determined for a third time, in the absence of any new facts, is unreasonable, frivolous, vexatious and in bad faith. He stated the entire day of April 1, 2015 was lost due to the Appellants’ conduct and by their allegations that the Presiding Member was biased requiring significant time being allotted to determine the issue one more time. Consequently, he sought costs in the amount of $1,000.00 for April 1, 2015.
The Appellant, A.F., submitted the Appellants did not bring a motion for the determination of whether or not there was a reasonable apprehension of bias. Rather, the Presiding Member asked for submissions on the issue. She stated the Appellants were simply defending themselves from attacks by Tarion. A.F. further stated she objects to taking time to address the issue of costs at this time; she thought they would do that at the end of the hearing
Again, Mr. McConville, counsel for Polmat Group Inc. was not present and was not invited to make submissions.
THE LAW:
The Statutory Powers Procedure Act, R.S.O. 1990, chapter S.22 (“SPPA”) applies to this proceeding and provides:
Application of Act
- (1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision. R.S.O. 1990, c. S.22, s. 3 (1); 1994, c. 27, s. 56 (5).
Costs
17.1 (1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding. 2006, c. 19, Sched. B, s. 21 (2).
Rules
(4) A tribunal may make rules with respect to,
(a) the ordering of costs;
(b) the circumstances in which costs may be ordered; and
(c) the amount of costs or the manner in which the amount of costs is to be determined. 2006, c. 19, Sched. B, s. 21 (2).
Pursuant to the SPPA, the Tribunal has developed rules governing the determination of the issue of costs. Specifically, Rule 14 of its Rules of Practice provides, in part, as follows:
14.1 Where a party believes that another party in the proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may make a request to the Tribunal for costs, which shall be made with notice to the other parties.
14.3 The tribunal will not award costs, whether requested by a party or on its own initiative, without giving the parties an opportunity to make submissions.
14.6 The amount of costs shall not exceed $500 for each half day of attendance at a motion, pre-hearing, or hearing and shall not exceed $1,000 for each full day of attendance at a motion, pre-hearing or hearing.
THE DECISION
a. Reasonable Apprehension of Bias
In reviewing the submissions, it cannot be determined that either the Respondent or the Appellants have any apprehension of bias. 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’ submissions contained no new facts or allegations to support their allegation that the Presiding Member is biased, notwithstanding the fact this was the third time this issue has had to be determined by this Tribunal.
They did not provide any evidence of any specific conduct by the Presiding Member to support the assertion that she is biased except to state that because the Presiding member was sustaining the objections made by counsel for the Respondent and not agreeing with the Appellants’ request that she overrule the Respondent’s objections, she was 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 and the apprehension of bias must be objectively supported. Furthermore, as noted in this Tribunal’s March 18, 2015 Motion Order on this same issue, there are numerous court cases that have decided that a bias motion should be decided at the first instance by the same judge or tribunal member against whom that bias is alleged.
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. 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, however, all of the parties, including both of the Appellants, have made it very clear that they do not want to begin the hearing again with a new adjudicator, which they understand is the consequence of a finding there is a reasonable apprehension of bias.
After delivering this ruling orally, the Presiding Member received submissions on the issue of costs.
b. Costs
The need for this Tribunal to receive submissions and determine the issue of whether or not there is reasonable apprehension of bias for the third time when no new facts are alleged constitutes conduct that is unreasonable and frivolous. Further, the Appellants demonstrated a repeated refusal to accept the rulings of this Tribunal leading up to and culminating in the allegation of bias being made for the third time, and this resulted in the hearing day of April 1, 2015 being forfeited with little or no evidence being received. The Appellants’ submissions were in the nature of complaints about the process and this Tribunal’s attempts to control that process. They did not appear to be willing or able to appreciate the consequences of the events they set in motion by their disruptive behaviour.
It is unreasonable to require this Tribunal to determine the same issue multiple times. It is unreasonable and frivolous to require the Tribunal to have to repeat the same process over the same allegation in the absence of any new facts. The Tribunal has given the Appellants’ directions, on multiple occasions that their recourse, if they believe this Tribunal’s rulings to be incorrect, is to appeal those rulings. It is neither helpful to an efficient hearing process, nor proper for any party to disregard those rulings and argue with the Presiding Member in an attempt to change her mind. It is this behaviour and the Appellants’ persistence in asking repetitive and irrelevant questions of the Respondent’s witness on his fourth day of cross-examination which has resulted in Mr. Arnold’s objections to the Appellants’ line of questioning and the Tribunal’s multiple rulings on the same objection. This has resulted, for all intents and purposes, in the loss of the April 1st hearing day.
For these reasons, and pursuant to Rule 14.6 of the Tribunal’s Rules of Practice, the Respondent will have its costs for April 1, 2015, fixed at $1,000.00 and paid by the Appellants on or by April 15, 2015.
LICENCE APPEAL TRIBUNAL
_________________________
Patricia L. Cassidy, Vice-Chair
Released: April 8, 2015