[The Applicant] v. Gore Mutual Insurance Company, 2019 CanLII 101509

Licence Appeal Tribunal

Citation: [The Applicant] vs. Gore Mutual Insurance Company, 2019 ONLAT 18-011978/AABS

Tribunal File Number: 18-011978/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

[The Applicant] Applicant

And

Gore Mutual Insurance Company Respondent

INTERIM DECISION

ADJUDICATOR: Craig Mazerolle

Representatives for the Applicant: Peter Murray and Imtiaz Hosein

Representative for the Respondent: Arthur Camporese

OVERVIEW

1On July 29, 2019, I dismissed the applicant’s motion to strike the respondent’s preliminary issue.

2In a lengthy letter dated July 30, 2019, the applicant takes the position that my decision was made with a closed mind and displayed a reasonable apprehension of bias. The applicant asks that I recuse myself and void my decision.

3In a letter dated August 6, 2019, the respondent opposes the applicant’s request. The applicant responded to this letter on August 7, 2019.

4Though the applicant ought to have [ ] brought this issue to the Tribunal as a Notice of Motion, I am prepared to waive those procedural requirements. However, I remind counsel of their obligations to comply with the Rules in the future.

REASONABLE APPREHENSION OF BIAS

5The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (SCC), at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

6In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45, at para. 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. In order to overcome this presumption, a party alleging actual or a reasonable apprehension of bias must establish the presence of serious grounds:

Viewed in this light, “[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified.

7The Court also noted that this inquiry is necessarily fact-specific and highly contextual:

Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts.¹

8Put another way, a party cannot simply state that there is bias and then list a set of unrelated statements to support this allegation. Rather, these alleged facts must be first established, and then carefully understood in the context of the overall litigation and/or the relationship between the parties and the decision-maker.

9It should also be noted that the case law makes it clear that an adverse decision does not, by itself, rebut the presumption of impartiality.²

10Taken together, the threshold for a finding of real or perceived bias is high, and there must be more than mere suspicion. Rather, cogent evidence is needed. Further, the cumulative effect of all the adjudicator's conduct, comments and interventions must be assessed to rebut the strong presumption of impartiality.

ANALYSIS

11Having regard to these principles, I am not satisfied that the applicant has met the high test required by the courts.

12In the present matter, the applicant asked me to strike a preliminary issue proposed by the respondent. The parties provided both written and oral submissions. I considered these submissions, and issued a decision explaining why I would not strike the respondent’s preliminary issue. I also directed the parties to work with the Tribunal to set up a case conference, during which the procedural details of a preliminary issue hearing could be determined. In my decision, I also provided a non-binding suggestion about how this preliminary issue hearing could be conducted.

13On these facts, I find that “an informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude that there is no reasonable apprehension of bias.

14Further, though the applicant may take issue with my decision in 18-006654 v. Royal Sun Alliance Insurance, an adjudicator’s previous decision-making record is no clear indication that she or he will decide similar matters in the exact same fashion.

CONCLUSION

15For these reasons, the applicant’s request is refused. I will not recuse myself and my decision (dated July 29, 2019) is confirmed.

Footnotes

1. 1Ibid, at para. 77.
2. 2See Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 at paras. 84-85.