RECONSIDERATION DECISION
Before: Adjudicator Tavlin Kaur
Licence Appeal Tribunal File Number: 19-006130/AABS
Case Name: Camille Hutchinson v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Rajwant Bamel, Counsel
For the Respondent: Marcin Panasewicz, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated April 7, 2022 (the “Decision”) where I orally denied a motion to convert the videoconference hearing to a written hearing. The parties were ordered to proceed to a videoconference hearing. The applicant’s counsel refused to proceed because he only had instructions to proceed to a written hearing. The matter proceeded and I found that the applicant did not demonstrate that the treatment plans were reasonable and necessary, or that interest or an award was payable. The application was dismissed.
2In her request, the applicant alleges that I was biased, that I made significant errors of law, that I violated the rules of natural justice and deprived the applicant of procedural fairness by ordering the applicant to proceed. Additionally with her request for reconsideration, the applicant also submitted new evidence, being a note from Dr. Uzma Naaz Syeda in relation to her psychological state.
3The respondent provided submissions arguing that the applicant failed to articulate the nature of the bias alleged and has failed to establish that there was any reasonable apprehension of bias displayed as against the applicant. Moreover, the “new evidence” upon which the applicant relies on was created after the Decision was rendered could have been obtained before the Decision was rendered and would have not affected the outcome of the Decision in any event.
RESULT
4The applicant’s request for reconsideration is denied.
ANALYSIS
5The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (“Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result;
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result;
6Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence, nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
7For the purposes of clarity, I have interpreted the allegations of bias under Rule 18.2(a) along with the allegations of the violation of procedural fairness. The allegations that I made an error of law have been interpreted under Rule 18.2(b). Although the applicant did not provide clear submissions about how the new evidence could have affected the result, I have considered the introduction of the new evidence under Rule 18.2(d).
8I find that the applicant’s request for reconsideration is an attempt at re-litigating her case, and I reject her assertions that I was biased, that I made significant errors of law, and that I violated the rules of natural justice and procedural fairness by ordering the hearing to proceed. Moreover, the introduction of new medical evidence would have not affected the result of the motion.
Rule 18.2(a): The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness
Allegations of bias or reasonable apprehension of bias
9The test for reasonable apprehension of bias is well-established. It is as follows:
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 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 394.
10In 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.
11The 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.
12There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one. Ontario Provincial Police v. MacDonald, 2009 ONCA 805
13A party cannot simply state that there is bias and then list a set of 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.
14The threshold for a finding of real or perceived bias is high, and there must be more than mere suspicion. Rather, cogent evidence is needed to support a “real likelihood or probability of bias.” Further, the cumulative effect of all the adjudicator's conduct, comments, and interventions must be assessed to rebut the strong presumption of impartiality.
15The applicant in alleging bias or a real apprehension of bias is relying on a statement that I made after I denied the motion and ordered the parties to proceed to the hearing. In her submissions, she refers to “I think that this is a tactic to delay this proceeding because, you said no earlier because you wanted to start tomorrow and now, you know, you’re giving me this excuse.” The applicant submitted that “that this statement by Adjudicator Kaur indicates that she did not believe that the submissions of the Applicant’s counsel were true or submitted in good faith and point to a reasonable apprehension of bias.”
16The applicant asserts in her reconsideration submissions that this statement provides insight into my reasoning process, which demonstrates that I did not consider the applicant’s evidence because I did not believe it to be true and labelled it as a “tactic”.
17The respondent’s position on this ground of the reconsideration is that when the entire context of the proceedings is considered, it is evident that I demonstrated no bias whatsoever as against the applicant and granted her wide procedural latitude throughout the hearing. The respondent submitted that:
The applicant’s submissions on this issue [bias] are, frankly, baffling, and seem to be premised on the unfounded idea that one party’s refusal to provide their own legal counsel with instructions should dictate whether a hearing proceeds as scheduled. Moreover, in support of her allegation, the Applicant points to a single statement made by the Adjudicator, out of context, in which the Adjudicator notes her difficulty in believing a perplexing and unfounded allegation made by the Applicant’s Counsel in the course of the hearing.
18The applicant’s submission alleging a reasonable apprehension of bias in the statement that I made is taken out of context in that it does not fully capture what I said at the hearing. The full statement is as follows1:
I’m not talking about the doctor’s note. I’m talking about you getting instructions to proceed in the event that a motion got denied. See, I find that a little bit troubling. I’m not sure if I even believe it to be honest with you. I think that this is a tactic to delay this proceeding because I, you know, said no earlier because you wanted to start tomorrow and now, you know, you’re giving me this excuse. Like, I’m at a loss. This is not appropriate, Counsel. I’m going to need five minutes.
19My comment was not in relation to the applicant’s psychological condition. Rather, it was in relation to the fact that counsel for the applicant did not have instructions to proceed to a videoconference hearing. Once my decision regarding the motion was made, applicant’s counsel then informed the Tribunal that he did not have instructions to proceed to a videoconference hearing. He stated, “without speaking to her, my instructions were to either adjourn or proceed to written hearing. I do not -- at this point, I do not even have instructions from my client to proceed ahead with the in-person hearing.”
20The lack of instructions issue was not raised before I made my motion order. In fact, when the discussion regarding how the hearing could be structured to accommodate the applicant took place, the applicant’s counsel did not notify the Tribunal that he did not have instructions for a videoconference hearing. Rather, he dismissed the proposed options and insisted that the matter proceed in writing. He mentioned that he had instructions regarding a written hearing, but he never stated that he could not proceed to a videoconference hearing.
21The position that the applicant’s counsel took frustrated the Tribunal’s ability to control its own processes. A motion order had been rendered. Counsel refused to comply and continuously argued that he could not proceed. The applicant’s counsel was given an opportunity to speak to his client before I made my decision on the motion.
22With respect to the applicant’s counsel’s request to commence the matter the following day, I did not think it was appropriate given the amount of time that had already been spent on this motion. The Tribunal’s mandate is to ensure a timely and efficient resolution of the matter on its merits. As outlined in paragraphs 2 to 7 of the Decision, the application has had a lengthy history of adjournments at the Tribunal. The hearing before me was almost two years after it was first scheduled for a hearing and three years after the appeal was filed. Putting this matter over to the following day had the potential of delaying the matter further and possibly requiring additional days if testimony was not concluded in a timely manner.
23In sum, I found the request to commence the hearing on the following day to be a delay tactic on the part of the applicant’s counsel for a variety of reasons. His conduct throughout the motion demonstrated attempts to prolong the matter. For example, he suggested that he be given an opportunity to provide an affidavit as evidence in support of the motion. There were issues regarding his ability to contact his client. He was in communication with the applicant before I made the decision regarding the motion. However, once a decision to proceed was rendered, he then informed the Tribunal that he could not get a hold of his client.
24In my view, the allegation of bias is unfounded. My conduct throughout the hearing demonstrates that I gave a lot of latitude to the applicant despite the fact that the Tribunal’s Rules were not adhered to. For example, I heard the motion to convert the hearing format even though it was not filed within the timeframe set out by the Rules and was not supported by any evidence. I considered the human rights argument despite the fact that counsel did not comply with the Tribunal’s process regarding requesting an accommodation. I proposed options in ways that the applicant could be accommodated such as proceeding with the expert testimony to minimize the applicant’s time at the hearing or spreading the applicant’s testimony out over the course of several days of the hearing. Counsel for the applicant was not open to these suggestions and was adamant that the only option was for the hearing to be converted to a written hearing.
25The applicant in her request for reconsideration did not present cogent evidence that supports her allegations of bias or reasonable apprehension of bias. Nor did the applicant clearly articulate how my comments were improper or how I demonstrated bias throughout the whole proceeding. It should also be noted that the applicant’s counsel never raised the allegation of bias at the hearing. This was only raised after I rendered the written Decision. It is a well settled principle that allegations of bias are serious allegations that must be raised at the earliest possible opportunity. As such, I find that the applicant has not met her onus to establish a reasonable apprehension of bias or bias that would result in the voiding of the Decision dated April 7, 2022.
Rule 18.2(a) and Rule 18.2(b): Whether ordering parties to proceed to a videoconference hearing resulted in a breach of procedural fairness and/or an error of law such that the Tribunal would likely have reached a different result had the error not been made
26I denied the motion to convert the format of the hearing and ordered the parties to proceed to a videoconference hearing. Paragraphs 20 to 42 of the Decision provide an account of how and why I came to that decision. The applicant submitted that I violated the rules of natural justice and procedural fairness and/or made an error in law by ordering counsel for the applicant to proceed to a videoconference hearing where the applicant was medically unable to attend the hearing and her counsel did not have instructions to proceed.
27I am not persuaded by this argument. As noted in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2SCR 817 at para 33, the flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. As noted in paragraphs 27, 31 and 40 of the Decision, the Tribunal discussed different options with the parties which could have accommodated the applicant and ensured that the hearing was completed in a timely manner. The hearing could have proceeded with the parties calling their expert witnesses. As outlined in paragraph 39 of the Decision, by requesting a written hearing, it is being conceded that the applicant’s testimony is not required. The medical evidence and expert testimony from both parties would have been sufficient enough for the Tribunal to make a determination whether the treatment plans were reasonable and necessary. The applicant was provided with an opportunity to be heard in a manner that would have minimized any potential impact on her mental health.
28The applicant’s counsel was not agreeable and insisted that a written hearing be ordered because that is what he had instructions for. Section 25.0.1 of the Statutory Powers Procedure Act R.S.O. 1990, Chapter S.22 gives the Tribunal the authority to control its own processes. It was within my discretion to make an order for the parties to proceed to a videoconference hearing. The expectation is that parties are prepared to proceed on the scheduled first day of a hearing in the event that an adjournment or other motion is denied. Having reviewed the Decision, I find that in ordering the matter to proceed, I did not make an error of law or fact, including any error of law or fact such that I would likely have reached a different result had the error not been made. Moreover, I find that I did not violate the rules of natural justice and procedural fairness by ordering that the parties proceed to a videoconference hearing.
Rule 18.2(d): Evidence not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result;
29As part of the reconsideration request, the applicant submits a note dated March 30, 2022 from Dr. Uzma Naaz Syeda. The applicant asserts that the note confirms the submissions made by the applicant’s counsel at the hearing. However, the applicant did not provide any submissions as to how this note would change the outcome of the hearing under Rule 18.2(d).
30The respondent submits that the applicant has neither demonstrated that the evidence could not have been obtained earlier and nor that the new evidence would likely have affected the result of the motion decision. The letter is not persuasive as there are multiple deficiencies in it. Moreover, the motion decision did not require a finding one way or the other of a psychological impairment preventing the applicant from attending the hearing.
31Although the applicant’s submissions on this ground of the reconsideration and its three conditions are unclear, I have considered whether this doctor’s note constitutes evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
32The note from Dr. Syeda states that “this letter was given to the patient. Patient is unable to appear for some in person court hearings due to previous traumatic experiences and PTSD. She has been working with trauma counselors [sic] to work on her mental health.” I do not find the note to be helpful. It is “new evidence”, but the applicant’s submissions are on how it could not have been obtained previously and whether it would likely have affected the result are vague and it appears to be based on the applicant’s self-reporting. Furthermore, the hearing was via videoconference and was not an in-person hearing.
33Moreover, a request for reconsideration is not an opportunity for a losing party to supplement the evidence once the deficiencies in his or her case have been exposed in a decision. This new evidence of a doctor’s note could reasonably have been obtained in advance of the hearing with some diligence. The applicant’s counsel acknowledged the fact that he had made a decision not to obtain the note in advance of the hearing as noted in paragraph 60 of the applicant’s reconsideration submissions dated April 28, 2022.
34In any event, I accepted that the applicant had psychological issues despite the lack of evidence. I turned my mind to the human rights considerations and explored ways to accommodate the applicant, which is outlined in paragraphs 27 to 35 of the Decision. The introduction of this doctor’s note does not change the Decision now, nor would it have changed the Decision if it were submitted as evidence at the motion.
35Having reviewed the Decision, I find the applicant has not met her onus in this request for reconsideration. I find no errors of law or fact in the Decision including any errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made. I find that I did not breach procedural fairness by ordering the parties to proceed to a videoconference hearing. I find that the applicant has not established her ground in alleging a reasonable apprehension of bias or bias on my part. Furthermore, the applicant has not convinced me that the new evidence of a doctor’s note which was not before me when rendering the Decision, could not have been obtained previously and would have affected the result.
CONCLUSION
36For all of the reasons noted above, the request for reconsideration of the Decision dated April 7, 2022 is dismissed.
Tavlin Kaur Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: August 22, 2022