Olson v. Echelon General Insurance Company, 2022 CanLII 117093

Citation: Olson v. Echelon General Insurance Company 2022 ONLAT 21-009913/AABS

Licence Appeal Tribunal File Number: 21-009913/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:

Christopher Olson

Applicant

And

Echelon General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Christopher Olson, Applicant

Anju Ishmael, Counsel

Joseph Campisi, Counsel

For the Respondent:

Jamie R Pollack, Counsel

Paul Sykes, Counsel

Court Reporter:

Guido Riccioni, Network Reporting

Held by Videoconference:

October 18 and 19, 2022

BACKGROUND

1This proceeding concerns a dispute between an insured person, the applicant, and an insurer, the respondent, about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”) arising out of a motor vehicle accident on October 6, 2019.

2I was assigned to an eight-day videoconference hearing in this matter which was scheduled to proceed from October 18 to 21 and continue November 7 to 10, 2022. The issues before me include whether the applicant sustained a catastrophic (“CAT”) impairment as well as his entitlement to an attendant care benefit, various treatment plans for medical benefits, cost of examination expenses, interest and an award.

3The week prior to the hearing, the respondent brought a motion seeking to adjourn the hearing because it had not had the opportunity to complete insurer examinations (“IE”) in response to the applicant’s application for a CAT determination. The applicant did not consent to the adjournment because the respondent made the request less than one week prior to the hearing, and he maintains there have been significant delays in the respondent’s scheduling its IEs. The applicant also requested that the respondent’s motion and supporting materials be struck from the record because the respondent failed to provide the applicant with its supporting materials when it filed the motion.

4The Tribunal issued a motion order on October 17, 2022, in which it dismissed the respondent’s adjournment request. Factors the adjudicator considered in this decision were:

i) The hearing has been scheduled since January 11, 2022. The respondent did not seek any relief on the fact that the CAT determination had not been denied pursuant to s.55 of the Schedule;

ii) There was over a two-month delay in the respondent’s scheduling of its IEs;

iii) The respondent’s request for an adjournment was made at the last minute when it was aware of the circumstances prior;

iv) The length of the requested adjournment was too long.

5At the beginning of the hearing, the respondent requested that its motion be reheard and requested an adjournment of the hearing. It argues that it would be procedurally unfair for the hearing to proceed because it has not had its CAT IEs completed. Consequently, it would be prevented from defending the case against it.

6The applicant argues that the matter has already been decided by the Tribunal and raising the same issue a second time is impermissible under the doctrine of res judicata. Further, an adjournment will prejudice the applicant as it will delay a determination being made in this matter. In order to give the applicant an opportunity to fairly respond to the respondent’s request for an adjournment, I adjourned the hearing until the next day to provide the applicant with an opportunity to provide additional submissions. After hearing the applicant’s submissions, I issued my oral ruling granting the respondent’s adjournment request. I advised the parties that written reasons for my decision would be forthcoming.

Applicant’s Motion – Reasonable Apprehension of Bias

7Immediately following my oral ruling, the applicant brought a motion requesting that I recuse myself as the hearing adjudicator. He argues that I displayed a reasonable apprehension of bias in my ruling on the respondent’s adjournment request. In response to this serious allegation, I provided both parties with the opportunity to make oral submissions.

8The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice & Liberty v. Canada (National Energy Board) at paragraph 394:

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.

9The Supreme Court elaborated on the definition in Wewaykum Indian Band v. Canada¹ where it defined bias as a leaning inclination, bent on predisposition towards one side or another or a particular result. The Court states that in order to overcome the presumption of impartiality, a party alleging an actual or a reasonable apprehension of bias must establish the presence of serious grounds.²

10The 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.³

11The applicant submits that the perception that there was a reasonable apprehension of bias is not about my decision granting the respondent’s adjournment request. Instead, it is about the circumstances in which my decision arose. The applicant relies on the affidavit of Nathalia Debski, Law Clerk with Campisi LLP, which set out the following:

i) On October 17, 2022, Vice-Chair Lindsay Lake dismissed the insurer’s motion to adjourn this hearing with reasons. Vice-Chair Lake made findings of fact, based on the motion records put before her by both parties.

ii) On October 18, 2022, the respondent renewed its motion to adjourn the hearing, relying on the exact same set of facts submitted by the insurer in their original motion records. The respondent did not raise any new or exceptional circumstance to support the second request for an adjournment.

iii) On October 18, 2022, I heard the respondent’s motion without first explicitly granting leave or authorization to have this motion be reheard.

iv) On October 19, 2022, I granted the adjournment for a period of 120 days without oral reasons indicating that they would follow.

v) The published appointments and vacancies table at pas.gov.on.ca/Home/Agency455 indicates that my OIC appointment expires on November 15, 2022.

12The applicant argues that a review of the above facts demonstrates that there was a reasonable apprehension of bias in my decision on the adjournment request. Further, I failed to provide oral or written reasons for my decision allowing the respondent to reargue it motion for an adjournment. He submits that any observer would agree that my failure to provide oral or written reasons on the spot for why I allowed this “abuse of process” makes clear that I favoured the respondent over the applicant without justifiable reasons. The applicant relied on case law which sets out the obligation of decision makers to provide written reasons for decisions⁴.

13The applicant also argues that my decision to grant the adjournment was a de facto reconsideration of the motion order issued two days prior. In addition, the respondent did not raise any new circumstances that were not already considered by the adjudicator in the motion order. Further, I did not apply the same stringent test that I did in my reconsideration decision in Zia v. Economical⁵ to the respondent’s request for reconsideration. In that decision, I denied the insured’s reconsideration request because it did not meet the threshold. The applicant argues that the fact that this case involved an insured demonstrates that I make decisions in favour of insurance companies. Not applying the same stringent test against the insurer in this case would only lead a reasonably informed person with the view that the insurance company is getting a break on their legal and statutory obligations.

14Finally, the applicant makes the bold assertion that my decision to grant the respondent’s adjournment request is somehow connected to the expiry of my Order in Council Appointment on November 15, 2022. He submits that any reasonably informed person knows that I will not be an adjudicator after November 15, 2022. Therefore, an informed person would agree that I had no motivation to proceed with the hearing because I will not be around to write the decision. Consequently, the applicant argues, my decision on the adjournment request had already been made. The applicant referred to a case in which a former adjudicator proceeded on a hearing and was not around to write the decision following the expiry of their OIC appointment. The applicant submits that after considering these facts any member of the public would conclude that there was a reasonable apprehension of bias and that I favoured an adjournment from the outset.

15The respondent opposed the applicant’s motion that I recuse myself for a reasonable apprehension of bias and argues that the high threshold has not been met by the applicant. For the reasons that follow, I agree.

ANALYSIS

16The applicant has failed to establish that there was a reasonable apprehension of bias in my decision to grant the respondent’s adjournment request. As a starting point, as the hearing adjudicator it is completely within my discretion to make procedural rulings which impact the fair outcome of the matter. The fact that I made a decision in which the applicant disagrees does not demonstrate that there was a reasonable apprehension of bias. The Tribunal’s authority to make decisions to ensure a fair outcome and the ability to control its process are clearly defined in the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (Effective February 7, 2019 (“Rules”) the Statutory Powers and Procedures Act (“SPPA”).⁶ Secondly, the applicant did not point to any authority which supports his argument that my failure to provide oral or written reasons for hearing submissions on the adjournment request on the same day breached any rule or requirement or supports a reasonable apprehension of bias.

17The applicant compares my decision on the adjournment to my reconsideration decision in Zia v. Economical in which I dismissed a request for reconsideration on the final outcome of a decision. The facts of that reconsideration request are irrelevant to this case. I find the applicant was very selective in the case law he referred to as he failed to mention numerous decisions authored by me which were not in the insurer’s favour. The applicant’s claims that my decisions have favoured insurance companies are completely without merit. In addition, I treated the applicant fairly by adjourning the hearing for one day to provide time for the applicant to make submissions on the respondent’s adjournment request. I considered those submissions and authorities referred to by the applicant before making my oral ruling. This conduct flies in the face of the applicant’s assertion that I somehow prejudged the matter.

18Furthermore, I find it inappropriate for the applicant to challenge my professional integrity by suggesting that any pending OIC expiry had any influence on my decision to grant the adjournment request. It did not. I will not be addressing this argument any further.

19Finally, the applicant has not pointed to any conduct or comments made by me during the course of the proceedings to support that I acted in a biased manner whether consciously or not. The reference to my reconsideration decision in Zia v. Economical or the potential expiry of my OIC appointment are completely irrelevant. The applicant simply disagrees with my decision and has not met the high threshold in demonstrating that there was a reasonable apprehension of bias in my decision to grant the adjournment. Consequently, the applicant’s request that I recuse myself on this basis is denied. Now, I will address my reasons for granting the adjournment.

Respondent’s Motion for an Adjournment

20Rule 3.1(a) requires that the Rules be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative, or at the request of a party to facilitate a fair, open and accessible process and to allow effective participation by all parties.

21Section 2 of the SPPA provides that any rule made by a tribunal under subsection 17.1(4) of s.25(1) shall be liberally construed to secure the just, most expeditious and cost-effective determination on any proceeding on its merits.

22As highlighted above, the respondent argues that it would be procedurally unfair for the hearing to proceed because it has not had its CAT IEs completed. Consequently, it would be prevented from defending the case against it.

23The applicant argues that there are no new circumstances in this case. Further, if the parties can make a request for the same remedy that has already been decided by another adjudicator it will bring the Tribunal’s reputation into disrepute. The applicant submits that adjournments should only be granted in exceptional circumstances.

24After considering the parties submissions and the case law, I grant the respondent’s adjournment request for a period of 120 days from today’s date. I find that to allow the hearing to proceed would prevent the respondent’s fair participation in the process as it does not have evidence to refute the applicant’s case.

25The Tribunal’s Rules and the SPPA provide the hearing adjudicator with broad discretion to ensure that hearings are procedurally fair and to allow for both parties’ meaningful participation. I find the conduct of the Tribunal and both parties has contributed to the current situation and the delay in this matter. First, the Tribunal erred in including the CAT denial as an issue in dispute in the case conference report and order issued on January 11, 2022. The issue should not have been included as it had not been denied. In the Tribunal’s recent motion order, the adjudicator acknowledged that there was no CAT denial until May 2022 as the applicant had not submitted an application for a CAT determination until that time. Furthermore, the applicant was delayed in submitting the OCF-19, as this did not happen until four months following case conference. In addition, the respondent was not in possession of the applicant’s CAT assessments until June 2022. I do not find that these facts were thoroughly considered by the adjudicator in the motion order in denying the respondent’s adjournment request. Although, I agree with the adjudicator that the respondent should have raised these issues in advance of October 7, 2022, I cannot overlook the chronology of the events in coming to my conclusion that an adjournment is necessary to ensure a fair hearing.

26I find the principle of res judicata does not apply to this case as the previous motion order was an interlocutory decision. It is well established law that res judicata applies only to final decisions that dispose of a matter. Although I agree that the Tribunal should be consistent in dealing with adjournment requests, ultimately the discretion lies with the hearing adjudicator to ensure a fair hearing. Further, I find the case law relied upon by the applicant is distinguishable from the facts before me. The applicant relies on the Tribunal’s decision in Murukesu v. Insurance Company in which the adjudicator denied the insured’s adjournment request.⁷ In that decision, the insured requested an adjournment because two witnesses were not available and there was a delay in obtaining some medical records. I do not find this decision persuasive to the present case as this is not a situation involving the availability of a witness or obtaining medical records. This case involves whether or not the applicant sustained a CAT impairment. The respondent does not have any reports to rely on. In my view, forcing the respondent to proceed in the absence of any evidence would result in a breach of procedural fairness and a fair determination being made in this matter.

27Finally, I find that it is within the realm of possibilities that the respondent’s CAT IEs determine that the applicant meets the CAT threshold and results in either settlement or narrowing the issues in dispute. This would result in a hearing being unnecessary and potentially saving both parties the cost of an expensive hearing.

28The respondent’s remaining CAT IEs are currently scheduled to occur in November 2022, and January, February and March 2023. I find that the IEs scheduled in February and March of 2023 would create undue delay. However, I am prepared to grant an adjournment of 120 days to provide the respondent with the opportunity to have IEs conducted to ensure its fair participation in the process.

ORDER

29For all of the above-noted reasons:

1. The applicant’s motion that I recuse myself due to a reasonable apprehension of bias is dismissed.

2. The hearing is adjourned for a period of 120 days. The Tribunal will contact both parties to reschedule the hearing.

Released: December 8, 2022

___________________________

Rebecca Hines

Adjudicator

Footnotes

1. 1Committee for Justice & Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1976 CarswellNat 434 (S.C.C.)], 1976 CanLII 2, at para 394.
2. 2Wewaykum Indian Band v. Canada, [2002] S.C.R. 245 (S.C.C.), paras 58 & 59
3. 3[The Applicant] v. Gore Mutual Insurance Company, 2019 CarswellOnt 18037, para 10.
4. 4Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para 48 & Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at para 77
5. 5Zia v Economical Insurance Company, 2022 CanLII 75213 (ON LAT)
6. 6Statutory Powers Procedure Act, RSO 1990, c S.22
7. 7Murukesu v Insurance Company, 2022 CanLII 38878 (ON LAT), at para 9