L.D. v. Gore Mutual Insurance Company, 2020 CanLII 98747

1The applicant, [L.D.], has brought two motions: one is a request that I recuse myself from making a decision that I already made on May 27, 2020, and the second is that I reconsider that same decision in which I found that Ms. [D]’s motion filed on July 31, 2019 is moot.

2The chronology leading to the request for recusal starts with a several motions that were scheduled to be heard on December 18, 20202019. Ms. [D] had two motions scheduled for that day, one to be argued by Mr. Hosein and a second to be argued by Mr. Murray, both of the Campisi law firm, and both present in the hearing room. Mr. Camporese represented the respondent, Gore Mutual Insurance Company (“Gore”). Gore also had a pending motion.

3The first motion, argued by Mr. Hosein, sought to strike the insurer’s response as a consequence of the insurer’s witnesses, Ms. Bethune, refusing to answer questions during cross-examination on her affidavit. This relief was identical to relief sought in an earlier motion in response to which the Tribunal held that Gore’s behavior was insufficient to ground the striking of its response. As the December 18^th motion progressed, Mr. Hosein and Mr. Murray took several breaks to consult. Ms. [D] finally elected not to proceed with that motion, but asked, instead, to bring a motion to compel answers to the refused questions. Over Gore’s objections, I granted Ms. [D]’s request and scheduled a written hearing on the motion to compel. I issued my decision on that motion on May 27, 2020, finding against Ms. [D]. Ms. [D] then brought this recusal motion.

4By letter dated June 15, 2020, Ms. [D[ asks that I recuse myself alleging a reasonable apprehension of bias. The bias alleged is that I have a personal animus against Mr. Murray and, by necessary extension, the whole Campisi law firm because, during a case conference on May 16, 2018, I made a remark that Mr. Murray found offensive. I subsequently apologized to Mr. Murray.

5Ms. [D] brought a second motion to reconsider my finding that the motion to strike Gore’s response that was heard and then abandoned on December 18 in favour of the motion to compel was moot based on my finding that Ms. Bethune had answered the questions in issue at the fifth day of her cross-examination in May 2019. In Ms. [D]’s view, I was without jurisdiction to make such a finding because it represented a denial of procedural fairness. I will address both motions in this decision.

6I decline to recuse myself. I am of the view that a reasonable person, in possession of the facts, would not conclude that I was biased against Mr. Murray or the Campisi law firm. There are also issues with the timing of the request for recusal. It was brought seven months after the oral hearing and five months after the written hearing and only after Ms. [D] was unsuccessful in her motion to compel answers. The timing on its own is sufficient to disentitle Ms. [D] to the relief she seeks. With respect to the finding that the motion to strike was moot, it was well within my jurisdiction to make such a finding based on the abandoned submissions of Ms. [D] at the December 18 hearing and on my finding that the behaviour complained of, refusal to answer questions on cross-examination, had been addressed on the fifth day of the cross-examination in May 2019.

REASONABLE APPREHENSION OF BIAS

7The exchange that led to the impugned comment occurred in a case conference on May 16, 2018. My recollection of the events is that counsel for the insurance company respondent in that case