RECONSIDERATION DECISION
Before: Sara Mintz
Licence Appeal Tribunal File Number: 19-008171/AABS
Case Name: Nagesu v. Traders General Insurance Company
Written Submissions by:
For the Applicant: David S. Wilson, Counsel
For the Respondent: Rebecca Brown Greer, Counsel
OVERVIEW
1The Applicant was injured in an automobile accident on June 12, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).
2The Applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal (“Tribunal”). The matter was heard by way of a videoconference hearing on July 13 and 14, 2022, by then Tribunal adjudicator Thérèse Reilly (“former adjudicator”). A decision was issued by the Tribunal on September 12, 2022 (“decision”). In the decision, the former adjudicator did not award income replacement benefits or medical benefits to the Applicant, finding in favour of the Respondent.
3On June 12, 2023, I sent a letter to the parties advising them that pursuant to Rule 18.1 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”), I was initiating a reconsideration of the decision on the Tribunal’s initiative. I requested submissions from the parties on whether a new hearing should be ordered.
RESULT
4I am cancelling the decision of the former adjudicator and ordering a rehearing of this matter.
BACKGROUND
5On May 3, 2023, correspondence was received from the Applicant’s counsel, which advised that the former adjudicator in this matter was working as counsel with Aviva Canada Inc. (“Aviva”), with an alleged commencement date of employment at the insurer of December 5, 2022. Counsel also advised that the insurer in this matter, namely Traders General Insurance Company (“Traders”), is owned by Aviva.
6As a result of the correspondence from counsel, the Tribunal immediately commenced an investigation under my direction as Associate Chair. That investigation took place in May and June, 2023.
7From the investigation, the following facts were discovered:
a. The former adjudicator applied to a job posting for Aviva in May 2022;
b. The former adjudicator had an interview with Aviva in June 2022;
c. The former adjudicator accepted an offer of employment from Aviva in June 2022;
d. The former adjudicator heard four matters involving Aviva/Aviva owned insurers between May 2022 and November 2022;
e. The former adjudicator released a decision in this case on September 12, 2022;
f. The former adjudicator’s appointment to the Tribunal ended on November 4, 2022; and,
g. The former adjudicator started working at Aviva in approximately December, 2022.
8Pursuant to Rule 18.1, I initiated a reconsideration of this matter, along with three other matters heard by the former adjudicator. In all four of those matters, the Respondent was Aviva or an insurer owned by Aviva. Accordingly, I am using the power of the Tribunal to exercise its discretion to initiate a reconsideration based on these exceptional and narrow circumstances.
9On June 12, 2023, I wrote to the parties and advised I was initiating a reconsideration of this decision under Rule 18.1 and provided timelines for submissions. I then sent a further letter on June 29, 2023 requesting submissions on hearing format if a new hearing is ordered.
TRIBUNAL PROCESSES
10There are many safeguards in place to ensure that adjudicators do not place themselves in potential conflicts of interest. The former adjudicator was first appointed in 2016. As part of her appointment, she was required to swear an oath to uphold the duties as a public servant including ethical duties. In addition to the oath swearing, the former adjudicator participated in the Conflict of Interest training and process. Finally, the former adjudicator executed the Code of Conduct during her appointment, as recently as February 2022. Adjudicators bear the onus to adhere to these duties and obligations. In this case, the former adjudicator ought to have known that she had the ethical obligation to recuse herself from the hearing in this matter.
11As the Associate Chair of the Tribunal, I instituted annual Code of Conduct repeat/refresher training. That repeat/refresher training took place on February 10, 2022, led by senior counsel with Tribunals Ontario. The former adjudicator attended the training and executed the updated Code of Conduct on February 10, 2022. In the Code of Conduct, there are many references to a member’s ethical responsibilities, including “Members will not adjudicate any proceeding involving a party or representative with whom he or she has a close personal relationship” and “to act impartially in the conduct of proceedings”.
12In the reply submissions, the Respondent has suggested the Tribunal is at fault for the actions of the former adjudicator. I find this assertion is not correct. Tribunals Ontario has a rigorous conflict of interest process, which includes the Tribunals Ontario Ethics Executive. However, it remains the responsibility of the individual adjudicator to identify and disclose any and all potential conflicts of interest both with the Tribunal and Ethics Executive. This was not done in this matter. If it had been done, I am confident the Tribunal safeguards would have ensured the former adjudicator did not conduct the hearing in this matter.
13When the former adjudicator provided notice to the Tribunal of her resignation, she advised that she was retiring. Following her resignation, the former adjudicator continued to communicate with the Tribunal and continued to apprise me about her retirement. At no point did the former adjudicator make me, as the Associate Chair, aware that she was leaving for other employment. As recently as June 2023, in an email communication to me, the former adjudicator still referred to her “retirement in November 2022”.
14The Tribunal initially acted in accordance with the information provided by the former adjudicator – that she was “retiring”. When new and contradictory information came to the attention of the Tribunal, the Tribunal immediately took steps to determine the former adjudicator’s employment details and then remedy the circumstances.
ANALYSIS
15The grounds for a request for reconsideration are found in Rule 18.2. The tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following 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 likely affected the result; or
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.
16As set out in detail below, I find there are grounds for reconsideration pursuant to Rule 18.2(a). I find that the former adjudicator’s failure to recuse herself resulted in a violation of the rules of procedural fairness on the grounds of a reasonable apprehension of bias.
17The test for whether there is a reasonable apprehension of bias, as set out by the Supreme Court of Canada, 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 et al. v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394.
18In 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 an actual or reasonable apprehension of bias must establish the presence of serious and substantial grounds. Establishing bias requires cogent evidence because bias allegations call into question the personal integrity of the adjudicator and the integrity of the administration of justice. Suspicion or conjecture is not enough: R v. S(RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484 at para 117; Marchand v The Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON CA) at para. 131. The onus rests on the party making the allegation to demonstrate a reasonable apprehension of bias, and the threshold is a high one: Ontario Provincial Police v. MacDonald, 2009 ONCA 805, at para. 44.
19The Applicant submits that the former adjudicator knew or ought to have known that Traders was owned by Aviva since the insurer’s documentation was on Aviva letterhead. Further, the Applicant submits that he could not have known that the former adjudicator had interviewed and accepted a job offer before this hearing started. Finally, the Applicant submits that the former adjudicator hearing a matter which included her future employer was a “display” of adjudicator misconduct. The Applicant is seeking a rehearing of this matter with a different adjudicator.
20The Respondent agrees that a rehearing should take place in this matter.
21Notwithstanding the agreement of the Respondent, I must determine whether there was a reasonable apprehension of bias and that the actions of the former adjudicator violated procedural fairness.
22I agree with the Applicant that the former adjudicator violated procedural fairness in this matter. The former adjudicator undertook to adjudicate a matter involving her future employer. She had accepted an offer of employment in June 2022, and a month later, conducted a hearing with that employer as the Respondent. The facts were known to her and never shared with the parties, myself as the Associate Chair of the Tribunal or Tribunals Ontario’s Ethics Executive. The relationship between the former adjudicator and Respondent/employer is sufficient to find a perception of bias. As I have found that there is a perception of bias, I do not need to determine whether there was actual bias to determine there is a reasonable apprehension of bias. Based on the facts above, I find there was, at minimum, a perception of bias, which is sufficient to find a violation of procedural fairness. See Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para. 45.
23Given that I have found that there was a violation of procedural fairness, I am cancelling the decision in accordance with Rule 18.4.
24My reasons above only apply to Aviva/Aviva owned companies, and not more broadly to any decision in favour of an insurer made by the former adjudicator post-May 2022. The relationship was between the former adjudicator and Aviva. There is nothing before me that would lead me to conclude that the former adjudicator was influenced on other matters. I see no reason to disturb decisions in which the former adjudicator conducted hearings with other insurers, and for certainty, do not see any reasons to disturb decisions of other respondents.
METHOD OF REHEARING
25I asked both parties to provide submissions on the method of rehearing. The Applicant is seeking a new oral hearing. The Respondent is seeking the matter be heard by way of transcript.
26Both parties provided submissions on the benefits of each method. However, given my findings above about the former adjudicator, I find that a rehearing is required. The former adjudicator made rulings on procedural matters that impacted the course of the hearing, and therefore, a rehearing by transcript alone is not appropriate.
27The rehearing of this matter will proceed orally with a new adjudicator.
28Both parties asked for a variety of expenses to be covered by the Tribunal if a rehearing was ordered. Neither party has demonstrated the legal authority for the Tribunal to cover legal expenses in association with the rehearing of this matter. I see no comparable situation in which a tribunal would absorb legal expenses for parties, even when the Divisional Court orders a rehearing by Tribunal based on an error of law. The remedy is the rehearing.
CONCLUSION & ORDER
29I find there are grounds for reconsideration pursuant to Rule 18.2(a). Pursuant to Rule 18.4, I am cancelling the decision and ordering a rehearing in this matter.
30The rehearing shall be heard by a different adjudicator and shall be conducted by way of a videoconference hearing. It shall take place within 120 days of this reconsideration decision.
31The Tribunal shall schedule a case conference for this matter within 21 days of the release of this reconsideration decision.
Sara Mintz Associate Chair Licence Appeal Tribunal
Released: March 15, 2024