Citation: Grewal v. Peel Mutual Insurance Company, 2024 ONLAT 23-004899/AABS

Licence Appeal Tribunal File Number: 23-004899/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:

Harpreet Grewal

Applicant

and

Peel Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Imtiaz Hosein, Counsel

For the Respondent:

Jonathan Schrieder, Counsel

Court Reporter:

Briana Lee

HEARD by Videoconference:

August 12-13, 2024

OVERVIEW

1Harpreet Grewal, the applicant, was involved in an automobile accident on November 7, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Peel Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Has the applicant sustained a catastrophic (“CAT”) impairment as defined by the Schedule?

ii. Is the applicant entitled to for $13,440.00 for catastrophic determination exams, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated February 17, 2021?

iii. Is the applicant entitled to $2,500.80 for the cost of driving assessment, proposed by Drive Lab Inc., in a treatment plan dated June 15, 2021?

iv. Is the applicant entitled to $3,469.58 for chiropractic and massage therapy treatment, proposed by HealthMax and St. Clair, in a treatment plan dated June 21, 2021?

v. Is the applicant entitled to $3,791.00 for occupational therapy, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated June 30, 2021?

vi. Is the applicant entitled to $6,334.84 for psychological therapy, proposed by Kaplan & Levitt Psychologists, in a treatment plan dated October 29, 2021?

vii. Is the applicant entitled to $4,487.57 for occupational therapy and assistive devices, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated April 11, 2022?

viii. Is the applicant entitled to $33,790.00 for living accommodations, proposed by Homewood Accommodations, in a treatment plan dated May 25, 2022?

ix. Is the applicant entitled to $4,695.00 for social rehab counselling, proposed by Okell Rehabilitation Services Inc., dated August 8, 2022?

x. Is the applicant entitled to $6,688.52 for other goods and services, proposed by Anchor Rehabilitation Support Services Inc., in a treatment plan dated August 2, 2022?

xi. Is the applicant entitled to $4,660.39 for occupational therapy services and assistive devices, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated July 21, 2022?

xii. Is the applicant entitled to $8,420.80 for other goods and services, proposed by Anchor Rehabilitation Support Services Inc., in a treatment plan dated November 30, 2022?

xiii. Is the applicant entitled to $5,491.00 for occupational therapy services, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated December 28, 2022?

xiv. Is the applicant entitled to $983.09 for other goods and services, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated December 28, 2022?

xv. Is the applicant entitled to $1,435.00 for oculo-visual assessment, proposed by Thompson Optometry Professional Corporation, in a treatment plan dated March 16, 2023?

xvi. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. S. Akram-Pall, in a treatment plan denied on October 22, 2019?

xvii. Is the applicant entitled to $4,140.25 for occupational therapy services, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated October 13, 2020?

xviii. Is the applicant entitled to $5,692.09 for various assistive devices, proposed by Okell Rehabilitation Services Inc., in a treatment plan dated October 13, 2020?

xix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

xx. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has failed to prove on a balance of probabilities that she has sustained a CAT impairment or that she is entitled to any of the benefits in dispute. The application is dismissed.

ANALYSIS

The application is dismissed

4On the second day of the hearing, I dismissed the application because the applicant refused to present evidence or make submissions on the substantive issues in dispute at this hearing. As outlined in Shakur v. Pilot Insurance Co. (C.A.), 1990 CanLII 6671 (ON CA), the evidentiary onus is on the applicant. The Court of Appeal stated that “it is fundamental insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy.”

5Over the course of two days, the applicant, represented by counsel, was provided opportunities to be heard by presenting her case. Instead of dealing with the substantive issues, all of our hearing time was dedicated to procedural issues which I will deal with in the following section of this decision. After several procedural issues were decided on the first day of the hearing, I directed the applicant to be prepared to call witnesses the next morning, on day two. According to the timetable set on consent of the parties, two doctors were available and timetabled to testify on the second day of the hearing. Instead, we spent the second day dealing with further procedural issues raised by the applicant: the applicant insisted that none of the applicant’s witnesses can be called until after the applicant testifies, despite being timetabled on consent to testify on specific days. At the same time, applicant’s counsel insisted that the applicant could not testify for medical reasons but provided nothing to support this claim.

6Ultimately, the applicant stated that she refused to proceed with this hearing. The applicant was provided opportunities, including a recess, to clarify and confirm that there would be no i. submissions made, or ii. witnesses called, or iii. evidence presented, regarding the substantive issues in dispute at this hearing. The applicant confirmed in very clear terms that she would not be proceeding with this hearing and would only be proceeding with her statutory appeal and application for judicial review of my procedural decisions. The respondent’s position was that the applicant’s actions over the first and second day of the hearing were attempts to declare her own adjournment and frustrate the Tribunal’s process. The respondent argued the application should be dismissed for a lack of evidence and submissions.

7The applicant failed to meet her burden, on a balance of probabilities, on all of the issues in dispute at this hearing as a result of failing to present any evidence in support of her positions.

8For the reasons above, I dismissed the application.

PROCEDURAL ISSUES

The applicant’s request for an adjournment is dismissed

9At the start of the hearing, the applicant orally requested an adjournment of the hearing. The applicant’s oral request for an adjournment is not granted. The applicant failed to convince me that she met the requirements in Rule 16 of the Licence Appeal Tribunal Rules, 2023 (the “LAT Rules”) which govern her oral adjournment request. LAT Rule 16.2 states:

Oral requests [for adjournments] will only be allowed in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event.

10The applicant sought an adjournment of the hearing because the applicant states she requires medical assistance to testify. The applicant stated she did not and could not have known of the circumstances giving rise to the request prior to the event because:

i. the circumstances leading up to this request began over the past several days culminating into the two days before the start of the hearing.

ii. she had surgery on her ribs some time between March and May of this year such that she finds it difficult to sit up and speak. She was struggling physically and psychologically as a result of preparing for this hearing. A similar triggering event took place in 2021 or 2022 as a result of the applicant having to speak about the accident which led to the applicant being admitted to a facility for three weeks. Doctors have noted this is an ongoing issue.

11The respondent’s position is that the March or May surgery of this year does not support the applicant’s request as it was known many months prior to this hearing. The respondent raises the issue of a lack of evidence offered by the applicant to substantiate her submissions. In the respondent’s opinion, the email received by respondent’s counsel yesterday evening regarding this adjournment request was not sent by the applicant at the earliest opportunity. The email contained a number of reasons for the adjournment request which included the physical and psychological state of the applicant, amongst a number of other reasons. The respondent states that other reasons contained in the email included an appeal to a court and her grievances with this Tribunal’s previous orders dealing with witnesses and summons that were made prior to this hearing. The respondent is concerned about fairness to both parties and submits that adjournment requests must be made in accordance with LAT Rule 16.1 and that LAT Rule 16.2 is meant to be utilized as an exception and an exception is not warranted here.

12It is the applicant’s onus to establish that she meets the requirements of LAT Rule 16.2 on a balance of probabilities. The applicant failed to establish the existence of compelling circumstances that she did not and could not have known in advance of the hearing because:

i. the physical difficulties that the applicant alleges were known well in advance of the hearing as the surgery resulting in the difficulties took place months prior; and

ii. the psychological difficulties the applicant alleges to be suffering from were known in advance and have been documented as ongoing by her doctors, according to the applicant’s own submissions.

13I dismissed the applicant’s oral request to adjourn the hearing for the reasons above. Although these concerns existed prior to the hearing, the applicant did not file an adjournment request in advance of the hearing. There was nothing to substantiate the position of the applicant other than counsel’s submissions. I note that there was no accommodation request filed by the applicant regarding medical assistance required to testify or any other accommodation.

14We also discussed the option of the applicant not testifying at this hearing given her alleged medical difficulties. The applicant argued that her testimony is required to clear up discrepancies found between the assessors and that she has a right to participate and be heard. The respondent also argued that it needs to cross examine the applicant.

15At this stage, I did not require the applicant to be the first witness to testify. I found that the hearing could proceed with or without the applicant’s testimony. Ultimately it would be a choice the applicant makes, whether to testify as the first witness, to testify on another day later in the hearing perhaps after getting medical attention, or not to testify at all. In my view, the applicant conflated her right to a hearing in which she can present her case with an absolute right to testify as a first witness.

The respondent’s request to admit its CAT expert reports into evidence is granted

16The respondent’s request for admission of its CAT expert reports is granted. The applicant refused to consent although the reports are included in the applicant’s hearing brief filed for this hearing.

17By way of a Notice of Motion dated August 7, 2024, the respondent requested:

i. to file a supplementary hearing brief containing s. 44 CAT expert reports, or;

ii. in the alternative for admission of those reports, and;

iii. for costs from the applicant.

18The respondent argues that the Tribunal ought to admit the reports because they had been delivered to the applicant when they were authored in July 2023 and were delivered again in February 2024 as part of their productions. The respondent filed a brief inadvertently leaving out these reports. However, all of the missing reports were contained in the applicant’s document brief. Consent was requested, but the applicant did not provide her consent.

19The applicant argues that I should not grant the motion because the respondent is in violation of the Tribunal’s deadline for filing of a hearing brief. This argument ignores that the reports are in her own brief that has been filed for this hearing.

20I granted the alternative relief sought by the respondent. The reports in question were agreed by the parties to be in the applicant’s filed brief. I note that the applicant cannot say to be surprised by the documents, she was well aware of them because they were included in her brief. As a result, the documents were properly before me.

21The respondent requested the Tribunal consider costs as a result of the applicant’s position. LAT Rule 19 applies to this request. I directed the respondent to make submissions orally in closing submissions at the end of the hearing to avoid delay in hearing the substantive issues in dispute. However, I need not consider the added issue of costs because no submissions were made.

The applicant’s request that the hearing be stayed is dismissed

22On the first day of the hearing, after the parties had been provided my procedural decisions regarding the applicant’s adjournment request and the respondent’s CAT expert reports. The applicant brought an oral motion to stay the proceeding. The applicant’s request that the hearing be stayed on the basis of s. 25 of the Statutory Powers Procedure Act (“SPPA”) is not granted because I find that s. 25 of the SPPA does not apply to this request.

23Section 25(1) of the SPPA provides as follows:

An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding

1. expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders

1. otherwise.

24The applicant submits that she will be seeking a statutory appeal of my order denying her request for an adjournment. The applicant argued that my decision is final in nature because I have ordered that the hearing could proceed without her testifying as a witness whereas she argues she has a right to be heard as she sees fit. In my view, the applicant is again conflating her right to a hearing, which has already begun, with an absolute right to testify as she sees fit. The applicant further argues this Tribunal cannot engage in analysis of whether an order is final or interlocutory as that authority is reserved for the Divisional Court.

25The applicant argues that although there is no appeal sought yet, an appeal will be pursued and a notice can be sought and provided before I consider a stay, if necessary. However, the applicant argues that it is not necessary, and I ought to stay the hearing based on the applicant’s submissions on her stated intention to pursue an appeal. The applicant offered no caselaw in support of her interpretation of s. 25 of the SPPA.

26The respondent argues that s. 25(1) of the SPPA does not provide for an automatic stay based on a party simply stating that it will be filing an appeal. The hearing therefore ought to proceed.

27The respondent offered caselaw in support of its position. Justice Corbett of the Divisional Court in Tamayo v. Licence Appeal Tribunal, 2023 ONSC 1692, at paragraph 5, states:

An applicant before the LAT may not obtain reversal of a decision denying an adjournment merely by filing a notice of appeal at the last minute. If this court has not had a reasonable opportunity to deal with the notice of appeal, then, as argued by counsel for LAT, it is open to LAT to conclude that the notice of appeal is a nullity and does not have the effect of staying the LAT proceedings.

28The respondent also referred me to this Tribunal’s previous decision in Shoshan v Co-operators General Insurance Company, 2022 ONLAT, where the Tribunal references the Divisional Court’s decision in Pafco Insurance Company v. Sahadeo, 2022 ONSC 328 (“Pafco Decision”):

In dismissing both the appeal and the judicial review application for prematurity, Justice Corbett referenced the court’s prior directions to the parties that the “impugned order and the proceedings below are not stayed unless and until the court orders otherwise” (emphasis in original).

29Considering the Divisional Court’s direction on the issue and the facts before me, I find that s. 25 of the SPPA does not apply to the circumstances before me. I find that the applicant’s stated intention to appeal my order denying an adjournment request does not automatically result in a stay of this hearing because my decision is interlocutory in nature.

30Further, even if I was presented with a notice of appeal filed at the last minute in the middle of the first day of a scheduled hearing, as offered by the applicant, it would be a nullity. I find that the applicant’s request for a stay, on the basis of an appeal and judicial review, is an attempt to obtain a reversal of my decision denying an adjournment request, akin to Justice Corbett’s analysis. Despite the applicant’s insistence otherwise, it is fair to note that the Divisional Court has consistently found that adjournments are interlocutory in nature and not subject to appeal until a final decision is rendered.

31For the reasons above, the applicant’s request for a stay of the hearing is dismissed.

A timetable is approved, the applicant’s final witness list is defined adding Dr. Fage, but her request for a summons is dismissed

32On the first day of the hearing, after denying the applicant’s motion to stay this proceeding, a timetable for witness testimony was set. I considered the orders in the Case Conference Report and Order (“CCRO”) and submissions by both parties to conclude the hearing on August 21, 2024. On consent, the witnesses were timetabled to conclude on August 21, 2024 and each party would receive 30 minutes for closing submissions as provided in the CCRO. Paragraph 15 of the CCRO provides me with discretion regarding a timetable to ensure an efficient hearing.

33On consent, the CCRO ordered the parties to file and exchange their final witness list limited to no more than 12 witnesses for the applicant and 9 for the respondent. The applicant filed a non-compliant final witness list on July 12, 2024 with a list containing 26 witnesses, more than twice the maximum ordered by this Tribunal. On July 16, 2024, by email, the applicant requested the addition of two witnesses to that list, seeking to add herself and Dr. Fage. However, the applicant was already listed in the original list of 26 witnesses so the email request was essentially to expand it to 27 by addition of Dr. Fage, bringing the applicant further into non-compliance. I note that the request is contained in the body of an email and there was no motion brought for the Tribunal to consider. The respondent filed a final witness list on July 15, 2024 with 3 listed witnesses.

34In a motion deemed received by the Tribunal on the first day of the hearing, the applicant requested that Dr. Fage be added to her witness list because he would testify in relation to the issues in dispute and regarding causation. She also requests issuance of a summons.

35The respondent did not consent to the motion. It argued that the witness is not necessary because his records are contained in a hearing brief for the Tribunal to consider, and there is nothing in his records where he opines on causation. The respondent also argues that the issues on this motion have already been decided by the Tribunal twice in previous orders released by the Tribunal on July 19, 2024 and August 6, 2024.

Tribunal order, July 19, 2024

36The applicant concedes that the summons for Dr. Fage was not approved but makes an argument based in procedural fairness for my consideration. The applicant alleges the summons was not approved because the applicant’s request to add Dr. Fage to the list was a day late. However, I did not find reference to this in the reasons provided by the Tribunal. The Tribunal did not have before it a motion to consider adding Dr. Fage as a 27th witness when the July 19, 2024 Tribunal order was released. The Tribunal made a decision not to approve a summons based on the applicant’s non-compliant list of 26 witnesses. The order provides the following reason at paragraph 8:

… I am not approving the summons request for Dr. Bruce Fage as he is not listed in the witness list filed by the applicant with the Tribunal on July 12, 2024. As the Case Conference Report and Order (“CCRO”) dated January 30, 2024 that set this matter down for a hearing states that the hearing “shall be limited to the exhibits filed and the testimony of witnesses in the final [witness] list,” I find that the applicant’s request is not consistent with the Tribunal’s previous order.

37Leading up to this hearing, the applicant failed to take steps to comply with this Tribunal’s previous orders as they relate to the applicant’s final list of witnesses. The applicant did not bring a motion to amend the limit on witnesses set in the CCRO at any point before or during this hearing. The applicant remained in noncompliance with this Tribunal’s previous orders, until the first day of the hearing when prompted to update the Tribunal with a list that complied with the limit of 12 witnesses in order to set a timetable.

Tribunal order, August 6, 2024

38In its August 6, 2024 Motion Order, the Tribunal dismissed the applicant’s motion seeking to add Dr. Fage to the applicant’s list of witnesses and seeking issuance of a summons. The Tribunal noted in dismissing the motion that the applicant failed to provide sufficient information to the Tribunal to consider as required by LAT Rule 15.1. Although the applicant acknowledged that all pages of the Notice of Motion form were complete and all required documentation was attached, she failed to provide submissions or evidence for the Tribunal to consider.

39Despite the applicant’s failure to comply with this Tribunal’s procedures and previous orders, I granted the applicant’s request to add Dr. Fage to her witness list. Based on her submissions, Dr. Fage was contemplated as a witness since at least July 16, 2024, a day after the respondent’s witness list was filed. The respondent is aware of the applicant’s intention to add Dr. Fage to her witness list. Dr. Fage’s records are contained in a hearing brief that has been exchanged and filed. The applicant has convinced me that Dr. Fage’s testimony is relevant to the subject-matter of this hearing, and I am not convinced it would be unduly repetitious to hear his testimony. I also considered if adding Dr. Fage would offend the limit of 12 witnesses for the applicant as ordered in the CCRO. The updated witnesses as timetabled bring the number of the applicant’s witnesses in compliance of that limit, even with Dr. Fage’s inclusion.

40I find that that this Tribunal has considered and decided on the applicant’s request for a summons of Dr. Fage twice. First, by way of order released July 19, 2024 and then by order released August 6, 2024. In the latter order, the Tribunal notes that LAT Rule 8.2 sets out the requirements for filing a request for a summons which includes filing the form in a timely manner so that the Tribunal can adjudicate and issue a summons in advance of the 10-day deadline for service. I find it unnecessary to engage with this fresh request because it does not comply with the requirements of LAT Rule 8.2. This request is dismissed.

41For the reasons above the request for a summons is dismissed. In light of s. 15 of the SPPA and my reasons above, Dr. Fage is added to the applicant’s list of witnesses that is now in compliance with the ordered limit on witnesses.

The applicant is provided an opportunity to file an accommodation request

42Late on the first day of this hearing, the applicant joined the hearing in addition to her counsel for the first time when making an oral accommodation request and remained until the end of the day. The applicant’s submissions continued to be made by her counsel. The applicant requested an accommodation orally, seeking the following four Orders argued in the alternative:

i. an adjournment of the hearing as an accommodation of her Human Rights Code-related needs; or

ii. an Order allowing the applicant to obtain medical direction about her limits and what accommodations would allow her to testify; or

iii. an Order allowing the applicant to withdraw her application and re-file it without being subject to a limitation period through the exercise of power granted by s. 7 of the Licence Appeal Tribunal Act; or

iv. any other Order the Tribunal deems just under the circumstances.

43The applicant did not provide any evidence in support of this request but did make submissions through counsel. The applicant submits that her surgery in May resulted in 6 weeks of bed rest, and she continues to struggle physically. She had an ablation procedure scheduled a month prior to this hearing that she could not complete as a result of being on antibiotics. That procedure has been delayed and, she submits, would help ease her physical pain. She argues that to testify would mean to risk her life but she states that if she does not testify she would be unsuccessful at this hearing. If an adjournment is not granted as a way to accommodate her, she would be forced to withdraw and there are limitation issues at play. The applicant argues I should exercise my power under s. 7 of the Licence Appeal Tribunal Act (“LAT Act”) to extend the time fixed for bringing disputes before the Tribunal such that the respondent would be barred from raising the issue of any limitation period on a future application. The applicant submits she believes she can testify after seeking medical intervention and that an adjournment should be granted on compassionate grounds.

44The respondent argues that the applicant is rearguing her request for an adjournment, an issue that has already been decided. The respondent submits that no one is asking the applicant to risk her life. However, in the absence of evidence the respondent cannot consent to an adjournment. In relation to the alternative relief sought, the Tribunal should not so easily dismiss the respondent’s right to raise the issue of a limitation period without an opportunity for fulsome submissions. The respondent submitted that it was sympathetic to the request for time to obtain medical direction. However, even if the medical direction is that the applicant ought not to testify, previous orders made in this hearing cover this scenario because it has been found this hearing could continue with or without the applicant’s testimony.

45I asked the applicant to clarify her submissions for me, specifically: why a Human Rights Code-related accommodation request was not made earlier if there is an established medical history of her needs, as she submits. The applicant stated this is a novel situation because, while her medical history relates to psychological concerns, her current physical concerns are new and only came about after a surgery. However, that surgery was in May, some three months ago. She also submits that her current alleged difficulties are a result of preparing her to testify as the first witness at this hearing. The applicant did not address why a request was not made after the surgery in May of this year or after the ablation procedure was delayed within the last month prior to this hearing. I once again note that there was no evidence provided to substantiate any of the submissions made. I will now deal with the applicant’s relief sought, each argued by the applicant in the alternative.

46I find that the oral request made in the afternoon of the first day of the hearing to accommodate the applicant, specifically in the form of an adjournment, is simply a re-argument of the oral adjournment request that was made this morning. I decline to make this order.

47I find that it would be procedurally unfair to the respondent if I granted the relief the applicant is seeking under s. 7 of the LAT Act. I considered that parties have a right to notice and a right to an opportunity to make submissions before such orders can be made. The issue of whether to extend the limitation period in the circumstances is not properly before me on this application. I decline to make this order.

48Although I find that the applicant did not notify the Tribunal as soon as possible about her Human Rights Code-related needs as found in LAT Rule 7, I provided her an opportunity to do so in a fulsome manner by filing a request. I granted the applicant’s request to seek medical direction about her limitations and what, if any, accommodations would allow her to testify. I ordered that the applicant may submit an accommodation request by following the Tribunal’s procedure and filing an Accommodation Request Form with the Tribunal. I reminded the applicant that the form should be completed with care and reminded her she could include evidence together with the form. I requested the applicant notify me after the request has been submitted to the Tribunal so that I may review the request and issue a decision on an urgent basis as this was an exception to the normal procedure regarding accommodation requests. Once the decision had been issued and depending on the result, I would revisit the timetable set for this hearing to accommodate her testimony as may be necessary. In the meantime, other witnesses were timetabled and could testify so as not to waste further time and tribunal resources. However, ultimately the applicant did not avail herself of this opportunity, and she did not file an Accommodation Request form or any medical evidence to support her need.

Applicant’s request for a production order regarding her policy is dismissed

49On the morning of the second day of the hearing, I was expecting attendance of a witness and opening statements as I had directed at the conclusion of the first day. Shortly after beginning the day, I was advised by applicant’s counsel that the applicant would be the first witness to testify rather than the two medical witnesses scheduled for the second day in the timetable. However, neither the applicant nor the scheduled medical witnesses were present at the hearing.

50However, the applicant’s counsel requested a recess stating the break would allow the respondent to respond to the applicant’s inquiry for information relating to her policy. The applicant’s counsel explained that the parties had discussions prior to the start of the day and the applicant wanted to know how long the applicant has after the accident to seek medical benefits. The respondent submitted if there was nothing being asked of the Tribunal other than a recess, the hearing should proceed to opening statements. The respondent argued it was not the Tribunal’s business to hear what the parties are discussing off the record.

51I declined the request for a recess and directed the applicant to identify their first witness so as not to delay the hearing further. The applicant objected, arguing the Tribunal should instead inquire regarding the information requested from the respondent on behalf of the applicant.

52I dismissed the applicant’s request. I find that the request for particulars regarding her policy was a request for a production or disclosure order with no clear deadline requested. While the applicant submitted it should not take more than 15 minutes to get the requested information. I find the request was made at such a late stage, on the second day of a hearing where we were still waiting for opening statements or clear confirmation of who the first witness would be to testify, that the request was adding further delay to the proceeding. This application was filed on April 28, 2023 relating to an accident that occurred on November 7, 2016. There was plenty of opportunity to request particulars or disclosure from the respondent that would be relevant or necessary for this hearing to take place, including during the extensive time that has passed after the case conference held on January 5, 2024 in which issues in dispute and production requests were defined.

Applicant’s request for a 30 minute recess is dismissed

53After dealing with the production request on the second day of the hearing, applicant’s counsel requested a number of breaks, including a 30-minute recess, to obtain and confirm instructions and to assess his client’s capacity. The applicant stated she wanted the Tribunal to know she had an appointment with her psychiatrist at 3:20pm. However, no submissions were made as to how this appointment information may assist the Tribunal moving forward.

54The respondent argued that this recess request was quite lengthy under the circumstances, being where we were, in the second day of the hearing and the lack of progress so far. The respondent argued it was unclear if we would be any further along if the recess was granted. The applicant submitted there were no guarantees about what would come out of the half hour recess.

55I asked applicant’s counsel for clarification if the submissions about her appointment with her psychiatrist at 3:20 PM meant that the hearing would not progress until after that appointment or if it meant that the applicant would not be available. There was no response to this question.

56In my view, it should not be necessary to repeatedly confirm instructions in the middle of a hearing as it frustrates the adjudicative process. Applicant’s counsel confirmed he already obtained instructions before the hearing and before the day began. Regarding capacity, the Tribunal presumes capacity until there is evidence to the contrary. No evidence was referred to by applicant’s counsel. The applicant failed to justify a 30-minute recess in addition to the number of breaks already being provided.

57The request for a 30-minute recess is dismissed. The parties were directed to begin opening statements. However, the applicant requested another short recess before making an opening statement. Another short recess was provided.

Applicant’s oral request to recuse myself is dismissed

58Upon return from preparing to make opening statements, the applicant then requested that I recuse myself, arguing that I was biased, and justice was not being done. I declined to recuse myself because I find that the applicant failed to satisfy me that the test for recusal had been met.

59The applicable legal test for a reasonable apprehension of bias was set out in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude...”

60The applicant argued that a third party witnessing this hearing would conclude I am biased, that I am denying her procedural fairness, and that no justice was being done. The applicant offered no caselaw in support of her interpretation of the test for a reasonable apprehension of bias. The applicant took me through the previous requests she made between the first and second day of the hearing, as follows:

i. the request for an adjournment,

ii. the request for a stay,

iii. the request for an accommodation,

iv. the request for production or disclosure.

61I find that while the applicant re-argued her submissions on the above requests, some of the positions she took on these matters were different than those expressed initially. For example, her grievance with the adjournment request not being granted is that she feels as if she is being treated “like a criminal” as a result of having to appear on a certain date and at a certain time. She has previously argued that she should be allowed to participate as she sees fit as a right.

62In relation to her request for an accommodation, she argues that she has a right to be accommodated. Her grievance is that I asked her to file an Accommodation Request form, while simultaneously arguing that I denied her right to an accommodation.

63The applicant submits that although she wants to appeal and therefore stay this hearing, she has a grievance that I have recognized this tribunal’s authority to order otherwise.

64She argues the breaks I took to consider and decide on procedural motions and requests are concerning to her. She further argues that my decision to shorten the hearing and conclude it on August 21, 2024 was arbitrary despite the hearing timetable being on consent of the parties. She argues that it is improper that my decisions were made without reviewing the hearing briefs in advance of the hearing.

65The respondent submits that the applicant has not established any single good reason for recusal. The respondent argues that the applicant simply does not like the interlocutory rulings but this does not amount to bias and is not grounds for a recusal.

66The respondent submits the test for bias can be found in Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (“OPP Decision”). That it is a two-part objective test. The respondent argues that the applicant’s submissions are not reasonable and do not point to any impugned behaviour. Since there is a strong presumption of impartiality and integrity, the applicable threshold is high. However, even if it was a low threshold the applicant would not have met it.

67The applicant’s request that I recuse myself is dismissed because I find that she failed to demonstrate a reasonable apprehension of bias. To satisfy the test I must consider the following, as found in the OPP Decision at paragraphs 41-44:

i. that the person considering the alleged bias is reasonable, someone vested with knowledge and understanding of the judicial process and the nature of judging. That this reasonable person knows and considers the context surrounding the impugned behaviour, including the length and difficulty of the proceedings.

ii. that the apprehension of bias is reasonable, that the grounds for this apprehension are substantial and not to be related to the very sensitive conscience. The threshold to demonstrate a reasonable apprehension of bias is a high one because there is a strong presumption of judicial impartiality and integrity.

68I find that the applicant’s submissions are not from the perspective of a reasonable person. I also find, based on the submissions made, that the apprehension of bias is not reasonable and that the grounds for this apprehension are not substantial.

69An illustration of this is found in the applicant arguing at many instances that the exercise of my authority or even merely acknowledging my authority is a sign of bias. The applicant also fails to sufficiently understand the nature of adjudication when she raises unfounded concerns with breaks that I took to deliberate in making procedural decisions. For example, at one instance asking for a list of names that played a part in my decision suggesting that my decisions were not my own. At another instance, asking if my remuneration as an adjudicator is affected by my decision to adjourn or not adjourn a hearing, suggesting I was not adjourning the hearing because I was securing a personal financial gain.

70The unreasonableness of the applicant’s position is also apparent from the applicant’s argument that the Tribunal should engage in eliciting evidence from her. For example, she submitted at times during this hearing that evidence would be available and offered based on what evidence I required to make a decision in her favour on procedural issues. In my view, this is effectively shifting her onus onto the Tribunal. It is not my role to provide parties with a list of evidence they should consider relying on to satisfy their onus. She also argues that the Tribunal should review hearing briefs in advance of the hearing and make determinations based on that independent review. However, it is up to the parties to come prepared, to request relief, to know the relevant test to be satisfied and to present their submissions and evidence within this Tribunal’s procedural framework for consideration. A hearing brief is not evidence that I need to consider unless and until its contents are made an exhibit during the videoconference hearing. I was mindful in this case that both parties had counsel representing them and I was not dealing with a self-represented party.

71I further considered that the applicant argued she felt as if she was being treated “like a criminal” by this Tribunal as a result of having to appear on a certain date and at a certain time for this hearing. Also, she had previously submitted that I was forcing her to risk her life as she would be endangering her life from a medical perspective if she testified. However, I had not required her to testify and under the circumstances, I had also not required the applicant’s attendance at the hearing.

72The respondent argues some characterizations by the applicant are inflammatory. I agree with the respondent that the applicant is conflating her disagreement with some procedural decisions with an apprehension of bias and that this is unreasonable. Among the procedural requests made at this hearing, the applicant made oral requests for an adjournment and a Human Rights Code-related accommodation. However, the applicant failed to provide evidence to support any of these requests or to substantiate any of her submissions. Still, I provided the applicant an opportunity to file an accommodation request including evidence in order to deal with the request on its merits even though this is not the Tribunal’s usual process. However, the applicant remained unsatisfied and did not ultimately file an accommodation request.

73Due to the applicant’s failure to demonstrate a reasonable apprehension of bias, I dismissed her request to recuse myself.

ORDER

74The application is dismissed. The Tribunal file is now closed.