RECONSIDERATION DECISION
Before: Christopher Evans
Licence Appeal Tribunal File Number: 20-012985/AABS
Case Name: Lewi Maycid v. TD General Insurance Company
Written Submissions by:
For the Applicant: Lewi Maycid, Applicant (Self-Represented)
For the Respondent: Michael L. Kennedy, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision regarding the amount of a lump sum indemnity for non-pecuniary damage under s. 73 of the Quebec Automobile Insurance Act, CQLR c A-25 (the "Act") and the Regulation Respecting Lump-Sum Compensation for Non-Pecuniary Damage, CQLR c A-25, R 10 (the "Regulation").
2At the hearing, the applicant moved to add three issues: whether he was entitled to physiotherapy services proposed in two treatment plans, and whether he was entitled to the cost of an assessment for which he did not submit a treatment plan. I denied the motion. The applicant submits that I erred in doing so and that I showed myself to be biased. He seeks reconsideration on all four grounds under Rule 18.2 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, but his submissions go to Rules 18.2(a) and (b). He requests that my decision be varied to add and decide the three issues.
RESULT
3I deny the request for reconsideration for the following reasons.
REASONABLE APPREHENSION OF BIAS
4The test for reconsideration under Rule 18.2(a) is whether the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. I find that the applicant has not met this test.
5The applicant did not raise any procedural fairness issues at the hearing. On reconsideration, he argues that I demonstrated myself to be biased for the following reasons:
a. I was annoyed that he was wasting my time because I wanted to use as little time as possible;
b. I was annoyed by his presence and his questions;
c. I was frustrated and agitated when he was unable to open files;
d. I showed no appreciation of or leniency toward the fact that he was self-represented and had no knowledge of how the Tribunal operates;
e. I dismissed a motion that he filed after the hearing; and
f. I relied solely on the respondent's understanding of the law and discredited his evidence.
6The respondent argues that there is a strong presumption of adjudicative impartiality, and that the applicant has not provided proof of bias that overcomes that presumption. It notes that I decided the issue in dispute partly in the applicant's favour.
7The test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the tribunal, whether consciously or unconsciously, would not decide fairly: Committee for Justice and Liberty et al. v National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at 394. There is a strong presumption of adjudicative impartiality. The burden lies on the party alleging bias to establish that there are "serious" or "substantial" grounds for such a finding: Wewaykum Indian Band v Canada, 2003 SCC 45 at paras 59, 76.
8I find that I did not demonstrate a reasonable apprehension of bias for the following reasons:
a. I did not express annoyance toward the applicant. He and counsel for the respondent were civil and respectful, and the hearing proceeded smoothly.
b. I did not say or imply that the applicant was wasting my time, nor did I try to cut the hearing short. The hearing was scheduled for two days, but the second day was unnecessary because the parties did not call any witnesses. I did not place any time limits on the parties' submissions.
c. I intervened during the applicant's submissions to focus him on the provisions of the Regulation relevant to his claim. I did so not because I was annoyed with him, but to ensure that he had an opportunity to address the key points on which his case turned.
d. The treatment plans that the applicant sought to add as issues were incomplete, not in sequential page order, and mixed with other documents. It took some time to sort out which pages formed part of which document and which pages were missing. Nevertheless, I did not become agitated or express frustration toward the applicant.
e. I appreciated that the applicant was self-represented and did not have a sophisticated understanding of the law or Tribunal practice and procedure. I explained the hearing process and my decision on the motion in plain language, and walked him through the key provisions of the Regulation during his submissions.
f. I addressed the applicant's post-hearing motion at paragraph 13 of my decision. I held that because it was essentially a request for reconsideration, it should not have been brought by motion before my decision had been released. I advised the applicant that he could file a request for reconsideration after reviewing my decision, which he has done.
g. I did not accept all the respondent's legal arguments, as can be seen at paragraphs 31 and 35 of my decision. To the extent that I did accept the respondent's arguments, it was because I found them to be correct.
h. I did not discredit the applicant's evidence. I accepted the findings of Dr. Tadros, the applicant's expert orthopaedic surgeon, and decided the corresponding issue in the applicant's favour at paragraphs 19-32 of my decision. At paragraph 35, I found that the other documents tendered by the applicant did not support his claim for a lump sum indemnity because they did not assess his impairments in accordance with the Regulation. I did not err in doing so. Even if I had, an error is not proof of a reasonable apprehension of bias.
9I find that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that I decided the application fairly. The applicant has not established that I breached my duty of procedural fairness and is therefore not entitled to reconsideration under Rule 18.2(a).
ERRORS OF FACT OR LAW
10The test for reconsideration under Rule 18.2(b) is whether I made an error of law or fact such that I would likely have reached a different result had I not made the error. I find that the applicant has not met this test.
11I denied the applicant's motion to add the three issues because he did not provide notice to the respondent. The Case Conference Report and Order ("CCRO") of September 6, 2022 noted that a lump sum indemnity for non-pecuniary damage was the only benefit in dispute, and directed the parties to contact the Tribunal if they agreed that any treatment plans should be added as issues. The applicant communicated to the respondent at times that he is entitled to services that it denied, but did not specify what services he intended to add as issues until the hearing was underway. I held that as a matter of procedural fairness, the respondent was entitled to notice of the case to meet. Because the applicant did not provide notice of what issues he sought to add, the respondent would have been prejudiced by adding them.
12The applicant submits that I erred in denying the motion. He argues that he is not legally sophisticated, that he did not know he had to notify the respondent about adding the issues before the hearing, that it should have been understood that he sought reimbursement for his out-of-pocket expenses, and that he provided notice by submitting all the necessary documentation and by bringing a motion.
13The respondent submits that I did not make an error of fact or law in denying the motion. It argues that I correctly held it would have been a breach of procedural fairness to add the issues given that the applicant had not provided notice.
14The applicant's submissions repeat the arguments that he made at the hearing. I addressed those arguments at paragraphs 9-11 of my decision. The CCRO made it clear that if he wished to add the treatment plans and assessment as issues, he had to identify them in advance of the hearing. I found that he did not adequately do so by including the treatment plans among many documents embedded in or attached to a series of emails, or by bringing a motion for reimbursement of his treatment in general.
15Reconsideration is not an opportunity to reargue one's case. To meet the test under Rule 18.2(b), the applicant must establish that I made an error of fact or law in my decision. I find that he has not done so. He has not shown that I made any incorrect findings of fact about the chain of events leading up to the hearing, or that I made an error of law in holding at paragraph 12 that the respondent was entitled to notice of the proposed issues as a matter of procedural fairness.
ORDER
16The applicant's request for reconsideration is dismissed.
Christopher Evans
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 24, 2023