RECONSIDERATION DECISION
Before:
Lindsay Lake, Vice-Chair
Licence Appeal Tribunal File Number:
23-000939/AABS
Case Name:
Baraah Abou-Gabal v. Economical Insurance Company
Written Submissions by:
For the Applicant:
Mohamed Elbassiouni, Counsel
For the Respondent:
Martin Forget, Counsel
Stephen Whibbs, Counsel
OVERVIEW
1On August 30, 2024, the respondent requested reconsideration of the Tribunal’s decision dated August 9, 2024 (decision). In the decision, the Tribunal found that:
a. The applicant was not barred from seeking a catastrophic (CAT) impairment determination for failing to attend a s. 44 insurer’s examination, pursuant to s. 55 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (Schedule);
b. The applicant sustained a CAT impairment under Criterion 8 as a result of the accident;
c. The applicant was entitled to Attendant Care Benefits (ACBs) in the amount of $1,920.67 from August 20, 2019 to present;
d. The applicant was entitled to the unapproved portion of a treatment plan for occupational therapy services and assistive devices except a Play Station console in the amount of $1,170.00 plus interest, but not to any other treatment plans in dispute; and
e. The applicant was not entitled to an award.
2The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (Rules). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or committed a material breach 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; or
c. 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.
3The respondent is seeking a “reconsideration of portions” of the decision. Specifically, the respondent is seeking a reconsideration of the Tribunal’s findings on the issue of CAT impairment, the applicant’s entitlement to ACBs, the applicant’s entitlement to certain unapproved portions of the treatment plan for OT services and assistive devices, and interest. The respondent submitted that a reconsideration is warranted in this matter because the Tribunal committed a material breach of procedural fairness and/or that the Tribunal made errors of law or fact that had those errors not been made, the Tribunal would have reached a different result. The respondent seeks an order cancelling the portions of the decision that concern CAT impairment, ACBs, and the treatment plan for OT services and assistive devices, and interest, and is requesting a rehearing on these issues by a different adjudicator.
4The applicant maintains that the respondent has not raised any grounds for reconsideration under Rule 18.2 and, therefore, the request should be dismissed.
RESULT
5The respondent’s request for reconsideration is dismissed.
ANALYSIS
6The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
The Tribunal did not commit a material breach of procedural fairness
7I find that the Tribunal did not commit a material breach of procedural fairness and, therefore, a reconsideration of the decision is not granted on this basis.
8In this matter, the respondent seeks a reconsideration of the decision under Rule 18.2(a) on the basis that there was a reasonable apprehension of bias on the part of the Vice-Chair Roberts, the hearing adjudicator, which resulted in a material breach of procedural fairness.
9It is undisputed that the applicant was diagnosed with autism in 2014. For this reason, the respondent raised the issue of causation at the hearing regarding the applicant’s post-accident impairments. As part of the decision, Vice-Chair Roberts found that the applicant’s functional impairments related to psychological diagnoses would not have been present but for the accident and, while the accident was not the sole cause of the applicant’s impairments, it was a necessary cause.
10The respondent alleges that there was a reasonable apprehension of bias in this matter given Vice-Chair Roberts’ long-standing history for autism awareness and support. As a previous Member of the Provincial Parliament, the respondent submitted that Vice-Chair Roberts was heavily involved with initiatives that sought to improve the lives of Ontarians with autism prior to his appointment to the Tribunal. To support this position, the respondent provided a media quotation from Vice-Chair Roberts which included information that one of his family members has autism, a quotation about Vice-Chair Roberts during official debates in Parliament, an online biography of Vice-Chair Roberts, Vice-Chair Roberts’ LinkedIn page, and two articles authored by Vice-Chair Roberts on autism support matters. The respondent submitted that it “would not be aware of which adjudicator or vice-chair would be dealing with the hearing until the hearing already began,” and, therefore, “it had no opportunity to request that Vice-Chair Roberts recuse himself.” I disagree.
11All of the material relied upon by the respondent in support of its position of a reasonable apprehension of bias pre-date the hearing, some significantly. Additionally, the hearing in this matter took place over six business days. The respondent has not provided any evidence to support its submission that it had “no opportunity” to request Vice-Chair Roberts to recuse himself or any evidence or submissions as to why it waited until the release of the decision to raise this issue. A party wishing to allege an unfair procedure has an obligation to bring its request forward in an expeditious manner. It was entirely unreasonable for the respondent to wait in weeds and then choose to advance an allegation of bias as the basis for a reconsideration after receiving an unfavorable decision on certain issues.
12Waiting in the weeds can also be a calculated decision that calls into question the significance of the bias alleged. Indeed, the respondent only requested a reconsideration of certain portions of the decision on the basis of bias. However, it is trite law that once a hearing is tainted by the appearance of bias, the integrity of the process requires that the decision of hearing in its entirety be declared void ab initio. The fact that the respondent is only alleging bias on the part of Vice-Chair Roberts regarding certain portions of the decision where the respondent was not successful further undermines its bias allegation.
13The respondent’s request for a reconsideration under Rule 18.2(a) is dismissed as the respondent is seeking to advance new arguments that it could have, but did not make, during the hearing of this matter. The purpose of a reconsideration is not an opportunity for parties to correct the shortcomings of their submissions and evidence after being unsuccessful.
14If I am incorrect in finding that the respondent’s allegation of a reasonable apprehension could have been raised at the hearing, I would find that the respondent failed to meet the high threshold for finding of a real or perceived bias in this matter.
15The Supreme Court of Canada set out the test for a reasonable apprehension of bias in Committee for Justice and Liberty et al. v. National Energy Board et al., 1975 CanLII 2, at page 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. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having through the matter though – conclude. Would he think that it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly.”
16In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45 at para. 59, the Supreme Court of Canada confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. In order to overcome this presumption, a party alleging a reasonable apprehension of bias must establish the presence of substantial 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 of 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.
17The Court also noted, at para. 77, that this inquiry is highly fact-specific and contextual:
[…] this is an inquiry that remains highly fact-specific… As a result, it cannot be addressed through peremptory rules, and… there are no “textbook” instances. 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.
18In other words, the facts raised in support of a claim of reasonable apprehension of bias must be established and carefully understood in the overall context of the litigation, as well as the relationship between the parties and the decision-maker.
19It should also be noted that an adverse decision, in and of itself, does not rebut the presumption of impartiality: See, Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604, at paras. 84-85.
20In summary, the threshold for finding real or perceived bias is high. There must be more than a mere suspicion, but rather a real likelihood of bias: See, Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856 (Canadian College of Business and Computers Inc.) at para. 24. Establishing an allegation of judicial or quasi-judicial bias requires cogent evidence: See, Marchand v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON CA), leave to appeal to SCC denied, at para. 131. Further, the cumulative effect of the adjudicator’s conduct, comments, and interventions must be assessed to rebut the strong presumption of impartiality: See, Canadian College of Business and Computers Inc. at para. 25.
21The respondent submitted that because one of the central issues in this matter was whether the accident caused the applicant’s impairments as opposed to being pre-existing and resulting from her autism, a reasonable, right-minded person would find it more likely that not that Vice-Chair Roberts would not decide the matter fairly given his background, advocacy, views on autism support, and “understanding that the outcome of the hearing would affect the supports available to the claimant.” As a result, the respondent submitted that a reasonable apprehension of bias has clearly been made out which has result in a material breach of procedural fairness such that a reconsideration is warranted on this basis.
22I disagree. Aside from referring to articles and background information, the respondent has not provided any cogent evidence to support a finding that Vice-Chair Roberts had a reasonable apprehension of bias in this matter. The only evidence offered by the respondent suggests that Vice-Chair Roberts may be considered a subject matter expert in the area of autism, but being a subject matter expert would not on its own be sufficient to displace the strong presumption of judicial and quasi-judicial impartiality. To accept the respondent’s position would be to accept that any adjudicator with subject matter expertise of a matter before them would automatically give rise to bias. Moreover, looking at the cumulative effect of Vice-Chair Roberts’ conduct, Vice-Chair Roberts only found in favour of the applicant on three of the eight issues in dispute. He also made several procedural orders against the applicant. These orders and the overall hearing outcome suggest that no reasonable apprehension of bias existed in this matter.
23For all these reasons, the respondent’s request for a reconsideration of the decision based on a material breach of procedural fairness under Rule 18.2(a) is dismissed.
The Tribunal did not err in fact or law
24I find that the Tribunal did not err in fact or law and, therefore, a reconsideration of the decision is not granted on this basis.
25The respondent submitted that the Tribunal made errors of fact and law such that the Tribunal would likely have reached a different result had the errors not been made. Specifically, the respondent submitted that the Tribunal made the following errors in the decision:
a. The Tribunal’s “summation of the ODSP application” as merely a snapshot in time was an error and it led to an incorrect inference that the ODSP application was not an “accurate gauge of the claimant’s functional status before the accident;”
b. The Tribunal erred in finding that the Holland Bloorview Hospital records were in line with the claimant’s father’s testimony; and
c. The Tribunal erred in not referring to the applicant’s “high functioning and talkativeness in hospital after the accident.”
26I find that none of these submissions point to any errors in the decision but instead show a disagreement with the Tribunal’s findings. It is open for the respondent to disagree with the Tribunal’s findings, but it is not a ground to grant a reconsideration of a decision.
27Further, the respondent acknowledged in its reconsideration submissions that the Tribunal is not required to address or reference every piece of evidence that its put before. The decision was based on evidence that the Tribunal found persuasive and it was open to the Tribunal to arrive at the conclusions it did on the face of the evidence submitted. Therefore, I find that no errors of fact or law were made in the decision such that a reconsideration is warranted under Rule 18.2(b).
CONCLUSION & ORDER
28The respondent’s request for reconsideration is dismissed.
Lindsay Lake
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: November 22, 2024
