RECONSIDERATION DECISION
Before: Tavlin Kaur
Licence Appeal Tribunal File Number: 22-010197/AABS
Case Name: Gore Mutual Insurance Company v. Katherine Laro
Written Submissions by:
For the Applicant: Arthur R. Camporese, Counsel
For the Respondent: Nigel D’Souza, Counsel
BACKGROUND
1This request for reconsideration was filed by the respondent, Katherine Laro, in this matter. It arises out of a preliminary issue decision dated June 23, 2023 (“decision”) in which the Tribunal found that the respondent was not involved in an accident. In her request, the respondent alleges that the Tribunal made significant errors of law and fact. The applicant Gore Mutual Insurance Company (“Gore”) disagrees and requests that the reconsideration be dismissed.
RESULT
2The respondent's request for reconsideration is dismissed.
ANALYSIS
3The 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. For the purposes of this request, the respondent relies on the following ground:
a) The Tribunal made an error of law or fact such that the Tribunal would have likely reached a different result had the error not been made.
4Under 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.
5I find that the respondent’s request for reconsideration does not establish grounds for reconsideration under Rule 18.2. I find she is attempting to re-argue her case. I reject her assertion that the Tribunal made errors of law or fact.
ANALYSIS
Rule 18.2(b): Errors of law and fact
Section 32
6The respondent submits that the Tribunal made an error of law by not considering the applicability of section 32. She states that “the Tribunal may not have the jurisdiction for the argument of estoppel, but it is in their power to render an opinion on the applicability of the Schedule, specifically s. 32.”
7The applicant submits that the respondent has failed to establish that the Tribunal erred in law. Furthermore, the applicant submits that the Tribunal's mandate to ensure fair, merit-based adjudications must be exercised within the boundaries of its statutory authority. The Tribunal does not have the authority to create accident benefits coverage where none exists irrespective of any perceived unfairness to the respondent.
8The question that was before the Tribunal was whether the respondent was involved in an accident. On March 11, 2023, the respondent wrote to the Tribunal and asserted that there was a second preliminary issue to be decided. In the email, the respondent’s counsel wrote “the second is whether Gore Mutual is estopped from submitting an application to the LAT for consideration of whether this loss is an ‘accident’.”
9On June 2, 2023, the Tribunal informed the parties that the case conference report and order (“CCR/O”) would not be amended because the doctrine of issue estoppel is not a preliminary issue. Despite this instruction, the applicant attempted to introduce arguments in relation to the doctrine of issue estoppel and section 32 of the Schedule in her submissions.
10Paragraph 40 of the decision addresses why these arguments were not considered. I find that I did not make an error of law. I considered the narrow issue that was before me. If there was an issue with the CCR/O, then it was incumbent upon the parties to bring a motion to address the alleged miscommunication.
The application of binding decisions v. non-binding decisions
11The respondent submits I made an error of law by not considering Harland-Bettany v. Aviva Insurance Canada, 2022 CanLII 78879 (ON LAT) (“Harland-Bettany”), G.R. v. Economical Mutual Insurance, 2019 CanLII 122726 (ON LAT) (“G.R”) and V.B. v. Economical Insurance Company, 2020 CanLII 87992 (ON LAT) (“V.B.”). She submits that “the case of V.B. should still be a binding decision since it still stands and has not been overturned or reconsidered.”
12As noted by the Court of Appeal in R. v. TransCanada Pipelines Limited, 2000 CanLII 5713 (ON CA), “…there is a well-accepted principle of administrative law that stare decisis does not apply to administrative tribunals. A tribunal is not bound to follow its own decision on similar issues, although it may consider an earlier decision persuasive and find that it is of assistance in deciding the issue before it.” I did not make an error of law. In paragraphs 23 to 27 of the decision, I provided reasons as to why I was not persuaded by V.B., Harland-Bettany and G.R. I am not obligated to follow the reasoning in these cases as they are not binding upon me.
13The respondent is of the view that the Tribunal erred in law by giving deference to the Divisional Court’s decision in Porter v Aviva, 2021 ONSC 3107 over the Tribunal's decisions in Harland-Bettany and Mahoney v. Co-operators General Insurance Company, 2020 CanLII 106434 (ON LAT) (''Mahoney"). I am bound by Porter, not other Tribunal decisions. Failure to give deference to Porter would have resulted in an error of law. I pause here to note that the respondent relies on K.P. v. Aviva, 2020 CanLII 35505 (ON LAT) for the principle that exiting a vehicle constitutes an accident even with ice present; however, the Tribunal’s K.P. v. Aviva was appealed to and overturned by the Divisional Court in Porter. Again, I see no error in applying binding case law.
14The respondent further submits that the Tribunal bypassed the intervening act component from Madore v. Intact Insurance Company, 2023 ONSC 11(''Madore"). In paragraph 29 of the decision, I explained why Madore is distinguishable from this case. In short, I agree with the applicant that the respondent is attempting to re-litigate her case, which is not proper grounds for reconsideration.
Reliance on the Statement of Claim
15The respondent submits I erroneously considered the Statement of Claim that was issued on July 28, 2020 because the tort action is outside of the jurisdiction of the Tribunal. My decision did not make any determinations regarding the tort action. In paragraph 39 of the decision, I noted that the pleadings of fact have yet to be proven and that the statement of claim at minimum characterizes her perspective of the incident that led to the slip and fall. The Statement of Claim was submitted as evidence, and I am within my jurisdiction to consider it as it is relevant to the facts of the case. The respondent has not directed me to any jurisprudence that disallows the Tribunal from considering the statement of claim. Moreover, my determination was based on all of the evidence that was put forth by both parties.
Fully stood up and exited the vehicle
16The respondent submits that I made a factual error when I determined that the respondent had fully stood up and completely exited the vehicle. She submits that she had not fully stood up and was in the process of exiting the vehicle when the incident occurred. This information was found in on page 10 of the of the transcript of the Examination Under Oath (“EUO”) dated January 31, 2023. She stated:
- Q. So had you fully stood up from the seat before you fell?
A. I had stood up and slipped, yes.
17In the psychological report dated May 7, 2021 from Dr. Erin Langis, it is noted that “she stated that after she exited the vehicle, she had a significant fall on the ice.” The social work psychosocial assessment report for catastrophic impairment determination dated May 30, 2022 from Ms. Revital Shuster, social worker, notes that “After she exited the vehicle, she slipped on the ice and fell on the ground. The parking lot of her house was not plowed or salted.”
18I did not make a factual error. I relied on the respondent’s own testimony as well as her self-report to various practitioners. In any event, the facts regarding her fully standing up are found in the background section where I summarized what happened on the day of the incident based on the evidence before me. I applied the applicable tests to determine whether the use or operation of the vehicle resulted in her impairments. I found that it did not.
Other errors
19The respondent submits that paragraph 5 should state “the respondent submits”. I agree. That is a typographical error. However, it does not change my decision.
20The respondent points to errors in paragraphs 6, 7, 23 and 42 of the decision. However, it is unclear what the purported errors are because the respondent does not clearly articulate her position.
Rule 18.2(a)
Perceived conflict of interest
21The respondent submits that there is a perceived conflict of interest present because the counsel for the respondent allegedly knows me because we were allegedly in the same graduating class. According to the respondent, “this relationship disallows an impartial adjudication for the case.” I interpret this as an allegation of bias or reasonable apprehension of bias under Rule 18.2(a). The respondent did not raise this ground in her request for reconsideration. In any event, I will address this allegation.
22The 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.
23In 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:
24Viewed 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.
25The 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.
26There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the respondent to demonstrate a reasonable apprehension of bias, and the threshold is a high one. Ontario Provincial Police v. MacDonald, 2009 ONCA 805
27A 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.
28The 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.
29The respondent has made an inaccurate statement that is not substantiated by cogent evidence that supports her allegations of bias or reasonable apprehension of bias. The respondent’s counsel and I were not in the same graduating class as alleged by the respondent. Nor has she established that there is a personal link to her counsel. Attending the same law school is not enough for there to be a conflict of interest or to rebut the presumption of impartiality and integrity. If this was the case, then many decision makers would have to recuse themselves for merely attending the same school. In my view, this does not rise to the high threshold required to overcome the presumption of impartiality.
30The respondent has failed to establish a reasonable apprehension of bias or bias that would result in the voiding of the Decision dated June 23, 2023.
31I provided reasons why the use and operation of the car did not cause her injuries. I applied that test to the facts before me. In my view, the respondent is attempting to re-argue her case.
32The onus is on the respondent to establish her grounds and she has not done so. Dissatisfaction with the result is not a ground of reconsideration. Not accepting the respondent’s submissions, evidence or case law at the hearing is not an error of law. Although the respondent may disagree with the Decision, reconsideration is not an opportunity for the respondent to re-argue her position, which is what I find to be the case here.
CONCLUSION
33For the reasons noted above, the respondent’s request for reconsideration is dismissed.
Tavlin Kaur Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: October 6, 2023