Tribunal File Number: 19-000081/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
K.H.N.
Applicant
and
The Guarantee Company of North America
Respondent
DECISION AND ORDER
Decision/Order made by:
Cezary Paluch
Date of Decision/Order:
October 28, 2019
For the Applicant:
Clifford Singh, Counsel
For the Respondent:
Patrick Brennan, Counsel
OVERVIEW
1The applicant was involved in an automobile accident on June 15, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
3The parties were unable to resolve the issues in dispute at the case conference held on May 2, 2019, and the matter proceeded to an in-person hearing scheduled for October 29-31, 2019 in Kitchener, Ontario. The issues in dispute are a non-earner benefit, costs of several examinations, an award and interest.
4During the first day of the hearing an issue arose, and I disclosed to the parties that I am currently seized of a matter related to a similar issue, and I recused myself and ordered that a new hearing be scheduled before a different adjudicator.
5Both parties provided oral submissions at the hearing.
Reasonable Apprehension of Bias
6On the first day of the hearing during the cross examination of the applicant, respondent’s counsel referred the applicant to a letter1 from the applicant’s law firm, Masgras Professional Corporation, to the respondent informing that the applicant may on occasion attend at a clinic called Spinetec or Meditecs and the owner of these two clinics is married to G.M. As I understood, respondent’s counsel wanted to ask the applicant questions about this letter to establish the I should assign limited weight to any records from Spinetec or Medictecs that form part of the hearing, because of bias in relation to any of the clinical notes and records addressing the applicant, originating from the clinics owned by G.M.’s husband.
7The applicant’s counsel objected to this line of questions as it was his position that this was not relevant to the issues in dispute. Before this procedural issue proceeded any further, and any determination made, or any further evidence heard, I advised the parties that I am seized of a matter concerning a similar issue involving the same lawyer, and the same clinics, and I had concerns that I, if I was to continue with this matter any further, did not want either party to assert later that this hearing was not fair and that I was biased from having heard other evidence involving essentially the same unique issue on another matter. I wanted to alert the parties to this as a real or potential conflict, or at least a perception of conflict that might undermine my neutrality leading to a reasonable apprehension of bias and whether recusal was necessary.
8In this respect, I also asked if they were willing to provide a waiver to allow me to proceed in this hearing and for their submissions.
9Applicant’s counsel advised that this was an important issue, and, in these circumstances, he was not able to provide a waiver and a recusal may be appropriate. Respondent’s counsel essentially agreed explaining that perception of bias is sometimes enough.
10In determining if a reasonable apprehension of bias would arise if I hear and determine this case, the following test is well-established:
The test for whether a reasonable apprehension of bias exists is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.2
11As this was only the first of a four-day hearing, with only the first witness being called, and given the position of the parties that they were not willing to provide a waiver and recusal may be appropriate, in the interest of avoiding any perception of conflict in adjudicating these issues by a reasonable, fair minded and informed person, I disqualify myself from hearing this matter and order a new hearing before a different adjudicator.
ORDER:
12For the reasons above, I order that a new hearing be ordered before a different adjudicator.
13The balance of the scheduled hearing dates of October 29, 30 and 31, 2019 are vacated.
14The parties are to contact the Tribunal within 30 days of the release of this decision and schedule a case conference to re schedule the date for the hearing and deal with any other procedural issues.
15All remaining terms of the previous issued Tribunal Orders remain in full force and effect.
16The three exhibits as filed being the two document briefs and one surveillance video will not form any part of the new hearing and the parties will have to request that new briefs and video be filed.
17Any orders made by me at the hearing, prior to my recusal order are vacated and null and void and the parties have to start the new hearing fresh from the start.
Released: November 20, 2019
Cezary Paluch
Adjudicator
Footnotes
- Exhibit # 2, Respondent’s Document Brief, page 565.
- As cited by Associate Chair in S.M. vs. Certas Direct Insurance Company, 2019 CanLII 43904 (ON LAT) at para. 27.