Lucia Derenzis v. Gore Mutual Insurance Company, 2024 CanLII 2670

Citation: Derenzis v. Gore Mutual Insurance Company, 2024 ONLAT 21-000394/AABS - R

RECONSIDERATION DECISION

Before: E. Louise Logan

Licence Appeal Tribunal File Number: 21-000394/AABS

Case Name: Lucia Derenzis v. Gore Mutual Insurance Company

Written Submissions by:

For the Applicant: Peter Murray, Counsel Ashu Ismail, Counsel

For the Respondent: Arthur Camporese, Counsel

OVERVIEW

1On July 18, 2023, the applicant requested reconsideration of the Tribunal’s decision dated June 27, 2023 (“decision”). In the decision, the Tribunal found the respondent did not unreasonably delay the payment of any medical or rehabilitation benefits, the treatment plans were not deemed incurred, and the applicant was not entitled to interest or an award under section 10 of Regulation 664. The applicant’s claims were dismissed.

2The grounds for a request for reconsideration are found 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”). 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 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.

3The applicant is seeking a reconsideration pursuant to Rule 18.2(a), (b), and (d). The applicant is seeking to have the decision cancelled, and a new decision issued finding the applicant is deemed to have incurred the medical and rehabilitation expenses for the treatment plans in dispute, is entitled to applicable interest, and a section 10 award. In the alternative, the applicant requests the Tribunal order a new hearing.

4The respondent submits the request for reconsideration should be dismissed.

RESULT

5The applicant's request for reconsideration is dismissed.

PROCEDURAL ISSUES

6On August 29, 2023, the applicant filed reply submissions that included exhibits that were determined by the Tribunal to be inadmissible by reason of privilege and struck from the record by Motion Order released to the parties on September 20, 2023 (“Motion Order”). The following materials were struck from the record:

a. Paragraphs 6, 7, 8, 9, 10, 11, 12, 16, 17, 18 of Ms. Karina Kowal’s August 24, 2023 affidavit that accompanied the applicant’s reply submissions filed on August 29, 2023; and

b. Exhibits 7A, 7B, 7C, 7D, 7E, and 7F to the applicant’s reply submissions filed on August 29, 2023.

7The Tribunal ordered that the materials that were subject to the Motion Order be withheld from the reconsideration adjudicator and that the Registrar prepare a redacted version of the applicant’s reply submissions filed August 29, 2023. Accordingly, I have reviewed the redacted version prepared by the Registrar in making my decision.

8On November 6, 2023, the respondent filed a Notice of Motion with the Tribunal seeking to strike paragraphs 4, 13, 14, 15, 16, 17, 18 and 19 of the applicant’s reply to the reconsideration request, including the Reasons for Decision of Justice C. Peterson dated July 6, 2023 (“Court Decision”), the affidavit of Ms. Kowal sworn August 24, 2023 and exhibits thereto, and the supplementary affidavit of Ms. Kowal sworn August 29, 2023 and exhibits thereto.

Paragraphs 13-19 and related affidavits and exhibits

9In its Notice of Motion, the respondent argues that the applicant’s reply submissions improperly raise issues that should have been raised by the applicant in her request for reconsideration. Specifically, the respondent argues the applicant raised reasonable apprehension of bias for the first time in her reply. It submits that in her initial submissions the applicant states that an “unbiased adjudicator” would have made different findings, but she did not raise reasonable apprehension of bias as a ground for requesting reconsideration until her submissions on reply. It argues that allowing these reply submissions would be unduly prejudicial and procedurally unfair to the responding party. The respondent argues it is entitled to know the basis for the request for reconsideration when it prepares responding submissions.

10The applicant argues the respondent’s motion should be dismissed, and the respondent should be “prohibited from bringing additional motions without prior leave as it is vexatious”. The applicant argues the respondent is repeatedly bringing identical motions in order to forum shop, which is an abuse of process.

11The applicant also submits that the respondent misdirects the purpose of paragraphs 4 and 13 through 19 of the reply submissions. She argues that the respondent does not mention the test for when claims of bias ought to be asserted. She argues the law with respect to bias requires it be raised as soon as it is reasonably possible to do so. She argues the only evidence before the Tribunal is the August 24, 2023 affidavit and there is no evidence it could have been meaningfully obtained earlier. The applicant also argues her reply does not split her case, and that it is a proper reply to the respondent’s responding submissions.

12I agree with the applicant that the respondent first brought a Notice of Motion requesting this relief on September 14, 2023, before the release of the Tribunal’s September 20, 2023 Motion Order. As noted above, that Motion Order struck some elements of the applicant’s reply, and declined to strike the reply submissions in their entirety, deferring to the adjudicator hearing the reconsideration as to the propriety of the reply. On November 6, 2023, the respondent renewed its request to strike sections of the applicant’s reply submissions and related affidavits and exhibits. I find there was no abuse of process in filing the November 6, 2023 Notice of Motion. The respondent’s request for relief is now properly before me as the adjudicator hearing the reconsideration request.

13There is some overlap between the Tribunal’s September 20, 2023 Motion Order and the respondent’s Notice of Motion as some paragraphs of the August 24, 2023 affidavit and related exhibits have already been struck and are therefore not before me.

14I agree with the respondent that paragraphs 13 through 19 in the applicant’s reply and the related affidavits and exhibits are improper. Rule 18.1 requires that the reconsideration request include “all submissions in support of the request which must specify the applicable criteria under Rule 18.2”. The submissions accompanying the applicant’s request for reconsideration identify a number of arguments, but do not include an allegation of bias. Although the applicant references an “unbiased adjudicator” in her submissions, the applicant did not argue bias as a ground for reconsideration until her reply.

15The applicant had the opportunity to raise the argument of bias as grounds for reconsideration. She did not. The fact the applicant obtained affidavits after the request for reconsideration and response had been filed does not negate the fact that Rule 18.1 requires “all submissions in support of the request” be filed and served with the request for reconsideration. Although the applicant argues she could not have made the arguments earlier, there is no evidence before me in support of this position. Accordingly, I find that the applicant’s reply submissions advance arguments related to bias that were not made in her initial submissions and which do not comply with Rule 18.1.

16The respondent’s motion with respect to paragraphs 13-19 of the applicant’s reply submissions, the affidavit of Ms. Kowal sworn August 24, 2023 and exhibits thereto, and the supplementary affidavit of Ms. Kowal sworn August 29, 2023 and exhibits thereto, is granted. I am striking these materials on the grounds that they go to the bias arguments raised by the applicant on reply.

Paragraph 4 and Exhibit 1

17As noted above, the respondent is also seeking to strike the Court Decision from the applicant’s reply submissions. The Court Decision is referenced in paragraph 4 and included as Exhibit 1. Exhibit 1 was not the subject of the Tribunal’s September 20, 2023 Motion Order.

18The Court Decision relates to a motion brought by the applicant in the Superior Court of Justice in relation to a Statement of Claim for damages arising from the accident. The applicant brought the motion for a declaration that the respondent was in contempt of court for allegedly failing to comply with a Court Order to produce documents from the accident benefits file. The motion for contempt was dismissed. The applicant has submitted the Court Decision in support of her reconsideration argument that the respondent withheld documents and “has demonstrated its belief that neither this Tribunal nor the courts can compel it to produce documents”.

19The respondent argues the Court Decision is not relevant and is extremely prejudicial, especially as the Tribunal is not privy to the full record that was before the Court. It also argues it is a clear violation of the well-established common law principle that judicial comment in a separate action is neither admissible nor relevant to the evidence of that witness in a different action. The respondent further argues that the applicant is at risk of breaching the deemed undertaking rule.

20The applicant argues that the reference in paragraph 4 of her reply submissions is to a finding of non-compliance in a similar fact situation. She argues there is no prejudice to the respondent as it was represented and did not appeal the Court Decision. She argues the Court Decision is probative as to the conduct and intent of the respondent with respect to compliance with production orders.

21I have reviewed paragraph 4 and Exhibit 1 of the applicant’s reply submissions. I find that the Court Decision is not relevant to the applicant’s request for reconsideration before this Tribunal. Whether or not the respondent complied, or did not comply, with production orders as set out in the Court Decision is not relevant to the criteria for reconsideration in Rule 18.2. Accordingly, I am striking Exhibit 1 and the references to the Court Decision in paragraph 4 of the applicant’s reply submissions.

ANALYSIS

22The 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.

Rule 18.2(d)

23I will first consider the applicant’s arguments under Rule 18.2(d) regarding introducing new evidence as the applicant relies on that evidence in her arguments under Rule 18.2(a) and (b).

24I find the applicant has not established grounds for reconsideration under Rule 18.2(d) for the following reasons.

25Rule 18.2(d) sets out a three-part test: (i) there must be evidence that was not before the Tribunal when rendering its decision; (ii) the evidence could not have been obtained previously by the party now seeking to introduce it; and (iii) it would likely have affected the result.

26The applicant has submitted a series of documents as Exhibits to her reconsideration submissions dated July 18, 2023. The applicant submits that on April 14, 2023, after the hearing and as a result of a summons in Tribunal file number 17-002762/AABS, the respondent’s agents, Rapid Interactive Disability Management Ltd (“RIDM”) and AssessMed, produced additional documents. The applicant submits that as a result, she discovered there were emails that had not been disclosed by the respondent, contrary to the Tribunal’s Case Conference Report and Order (“CCRO”) dated February 16, 2020. The applicant lists the productions from RIDM and AssessMed that she argues meet the test under Rule 18.2(d), which are found in Exhibits 7 to 22 of the applicant’s reconsideration submissions.

27The respondent argues that several of the documents were in the applicant’s possession before the hearing, while others are not relevant to the issues in dispute. It argues she could have obtained the other evidence before the hearing had she requested the files from RIDM and AssessMed. The respondent also argues that at the case conference on February 16, 2022, the Tribunal ordered the respondent to produce correspondence with non-parties in its benefits file, and communication between the respondent and the section 44 assessors and the respondent and third-party assessment companies. The respondent argues it complied with this order. It submits the applicant did not request, and the respondent was not ordered to produce, the files from RIDM and AssessMed. It also argues Exhibits 15, 16, 18, 19 and 20 are not new evidence as these would have been available to the applicant prior to the hearing or would have been available on a motion. It submits that Exhibits 17, 21 and 22 are not relevant to the issues before the Tribunal at the hearing.

28The respondent argues the onus is on the applicant to provide an explanation as to why the new evidence was not available at the time of the hearing, and there must be some proof that the evidence could not have been obtained earlier. It also argues that the applicant has not shown that these documents would have likely changed the outcome of the decision. On reply, the applicant argues that the respondent was ordered to produce the documents and the Tribunal erred in fact in finding that the respondent had complied with the Tribunal’s order.

29I find that the Exhibits referenced by the applicant do not meet the test under Rule 18.2(d) for the following reasons. The documents in Exhibits 7 through 22 pre-date the hearing in this matter. Of note, at paragraph 67 of the decision, the Tribunal addressed the applicant’s argument that the respondent failed to comply with a production order, including the applicant’s argument that because the assessment companies were the respondent’s agents, their records were required to be produced in compliance with the order. The Tribunal noted that according to the correspondence before it, the respondent had provided copies of its correspondence with these parties. It also noted that:

If the applicant thought something was missing, she had plenty of opportunity to bring a motion before the Tribunal to compel the respondent, the assessment companies and/or the IE assessors to produce any documents alleged to be missing from the order.

30I agree. I also find the fact that the applicant subsequently obtained documents through a summons on another file does not mean that they meet the test under Rule 18.2(d). The test is not whether they were obtained previously, but that they could not have been obtained previously. I find the applicant has not demonstrated that the respondent withheld the documents in this matter. If she believed that was the case, then she had avenues available to her to seek a remedy before the hearing.

31For the reasons set out above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(d).

Rule 18.2(b)

32The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. I find the applicant has not established grounds for reconsideration under Rule 18.2(b) for the following reasons.

33The applicant argues the Tribunal made several errors of law and fact. I will address each in turn.

IE Notices

34The applicant argues that the Tribunal erred at paragraph 21 when it “failed to grapple with the fact that the May 5, 2021 Notices did not identify any physician who would be conducting the section 45 assessment”.

35The respondent argues the applicant is advancing this argument for the first time on reconsideration and the Tribunal should decline to consider it. In the alternative, the respondent argues that the Tribunal correctly interpreted and applied the requirements and did not make an error of law.

36I find that the applicant has not provided any evidence that she made this argument at the initial hearing, and she did not dispute the respondent’s position that this is a new argument in her reply submissions. It is well established that reconsideration is not a forum for making new arguments. The parties are expected to put their best foot forward at first instance. It is not an error of law to not consider an argument that is not before the Tribunal.

37The applicant also argues the Tribunal erred at paragraph 41 when it dismissed the respondent’s failure to provide proper notice and speculated that “even if the Respondent had provided proper notice, I am not convinced the Applicant would not have attended”. The applicant argues that it is a significant error of law to make such a finding based on conjecture.

38I find that paragraph 41 does not contain this statement, but the Tribunal did make the following statement at paragraph 43 in the context of finding that the respondent’s actions did not delay the catastrophic IEs:

In this case, although I determined that the respondent failed to provide medical reasons for requesting the catastrophic IEs until February 2019 and at the latest until May 2021, I do not find that the catastrophic IEs were delayed because of the respondent’s actions. Even if the respondent provided a specific diagnosis or referred a specific condition, I am not convinced she would have attended the IEs. The abundance of documentary evidence, specifically correspondence from the applicant’s counsel or his staff, shows that the applicant objected to the IE assessments being booked through assessment companies instead of directly with each IE assessor. [emphasis added]

39On the assumption that this is the statement the applicant is referring to in her submissions, I note that at paragraph 45, the Tribunal set out the reasons for the delay in the IEs. The Tribunal noted that a number of IEs were cancelled for reasons unrelated to the respondent’s failure to provide medical reasons, but as a result of the assessor cancelling due to illness, and by the applicant through the actions of her counsel and counsel’s staff.

40I see no error of law in this finding. The Tribunal’s role is to assess the evidence before it and reach conclusions based on the evidence. The Tribunal did not speculate. Rather, it found, based on the evidence before it, that the respondent’s actions did not delay the catastrophic IEs. While it is clear the applicant does not agree with this finding, this is not grounds for reconsideration.

41The applicant also argues the Tribunal failed to assess whether each of the Notices of IEs provided the applicant with the legislated notice requirements. She argues the Tribunal created a “new test of requiring the Applicant to convince the Adjudicator that she would have attended the Respondent’s assessments had proper notice been given”. The applicant argues that an “unbiased adjudicator for an unbiased Tribunal” would not have ignored the respondent’s failure to provide the required notice, and would not have created a novel test, particularly when it avoids grappling with one of the key facts at issue.

42I will address the applicant’s references to an “unbiased adjudicator” in my analysis under Rule 18.2(a) below. I have already addressed the applicant’s argument with respect to the notices and the Tribunal’s analysis and findings about the reasons for delay. For clarity, I see no error in the Tribunal’s analysis. It did not create a “new test”. The Tribunal was determining whether the insurer unreasonably delayed or withheld payment, not whether a compliant section 44 notice was provided. In making its determination, the Tribunal considered the submissions of the parties and the evidence before it. It found, for the reasons set out in the decision, that the actions of the respondent were not the cause of the delay.

No requirement to provide Insurer information and documentation

43The applicant argues the Tribunal erred in law in failing to appreciate there is no requirement in the Schedule to provide an insurer with any documentation. She submits that all that is required under section 44(9)2(ii) is that the insured person provide the person conducting the exam with relevant information and documents.

44At paragraph 65, the Tribunal addressed the requirements of section 44(9)1 of the Schedule, noting that it requires both the insurer and the insured person to provide the IE assessor with such information and documents that are relevant and necessary for the review of the insured person’s medical condition. The Tribunal did not find there is an obligation to provide the insurer with documentation. It found there is a requirement that both the insurer and the insured person provide information and documentation to the IE assessor. This is in keeping with the language of the Schedule.

45Section 44(9)1 applies when the attendance of the insured person is not required at the examination. Section 44(9)2(ii) applies when the attendance of the insured person is required. The language in both section 44(9)1 and 44(9)2(ii) regarding the duty to provide relevant information and documentation to the assessors is the same. Section 44(9)2(ii) also requires that the insured person and the insurer shall provide such information and documents as are relevant or necessary for the review. Given that this is the language considered by the Tribunal in its decision, I do not find the Tribunal erred. Furthermore, I do not see how the alleged error would have likely changed the outcome of the decision.

Failing to apply constraints on assessments

46The applicant argues the Tribunal erred when it failed to engage in a balancing of an insured’s privacy rights with the rights of the insurer as it relates to the conduct of insurer’s examinations. The applicant submits that while the Tribunal cited 16-003144 v. Cumis General Insurance Company, 2017 CanLII 43881 (ON LAT), it made an error of law in its analysis and in its finding that the number and types of IEs were not excessive. The applicant also submits that an “unbiased adjudicator” would have found differently. As noted above, I will address the applicant’s references to an “unbiased adjudicator” in my analysis under Rule 18.2(a) below.

47I disagree with the applicant. I find that the Tribunal considered the number and types of IEs at paragraphs 23 to 31 of the decision. It set out the relevant legal test at paragraph 23. At paragraph 24, it set out the applicant’s argument that the number of IEs scheduled by the respondent were intended to intimidate her. The Tribunal noted that it was not pointed to any evidence in support of this submission. At paragraph 25, the Tribunal set out the applicant’s arguments that the respondent only required three assessors because its own assessor had found the applicant did not meet the whole person impairment requirements for catastrophic impairment. As noted in the applicant’s reconsideration submissions, the Tribunal disagreed. The Tribunal addressed the applicant’s argument at paragraph 26, noting that the applicant’s May 3, 2018 OCF-19 included the determination that the applicant met criterion 7 (55% or more whole person impairment). The Tribunal also found that the evidence showed both the respondent’s consulting expert and the applicant’s experts recommended assessments by a neurologist, physiatrist or orthopaedic surgeon, psychologist or psychiatrist, occupational therapist, neuropsychologist and a general practitioner.

48At paragraph 27, the Tribunal addressed the applicant’s arguments as to the weight it should afford the type of assessments recommended by the respondent’s consulting expert Dr. Castiglione. At paragraph 28, the Tribunal found there was a nexus between the described injuries and complaints and the requested IEs, and that the assessments were reasonably necessary. At paragraph 29, the Tribunal considered the applicant’s argument that the number of assessments was detrimental to her health. At paragraph 30, the Tribunal stated that despite its determination that the assessments were necessary, it also found the respondent was trying to reduce the number of IEs to assist the applicant. At paragraph 31, the Tribunal found that the applicant had failed to prove that the number and type of IEs requested by the respondent were excessive and designed to intimidate her.

49I see no error of law in the Tribunal’s analysis. I find the Tribunal set out and applied the correct legal test, considered the parties’ arguments, reached its conclusion based on the evidence, and provided clear and cogent reasons for its findings. The applicant is attempting to re-argue her case, which is not grounds for reconsideration.

Obligation to advise of CAT application process

50The applicant argues that the Tribunal made an error of fact with respect to the respondent’s obligation to advise the applicant of the process for applying for a catastrophic impairment (“CAT”) determination. The applicant argues that the Tribunal erred when it found that the evidence before it was that the applicant did not exhaust her non-CAT limits prior to applying for a CAT determination. The applicant argues that the Tribunal also erred when it stopped its analysis after stating that the Tribunal had no evidence as to whether the respondent did or did not advise the applicant how to apply. The applicant argues the onus was on the respondent to provide evidence if it did advise the applicant, and no such evidence was provided.

51I find the applicant has not established grounds for reconsideration for the following reasons. At paragraph 10, the Tribunal noted that the applicant applied for catastrophic determination in two separate applications in 2018: the OCF-19 of Dr. Newton dated May 3, 2018 and the OCF-19 of Dr. Kumbhare dated August 6, 2018. At paragraphs 72 through 74, the Tribunal considered whether the failure of the respondent to explain how to apply for catastrophic impairment merited an award. It found it did not.

52At paragraph 72, the Tribunal set out the arguments of the parties. At paragraph 73, it noted it was not provided with particulars of the award. It stated that if the respondent had known that a failure to advise how to apply was a basis for the claim for a special award, it might have filed evidence in defence of the allegation. At paragraph 74, the Tribunal agreed the respondent ought to have advised the applicant how to apply for a CAT determination once her limits were becoming exhausted. The Tribunal noted it had no evidence as to whether it did or not. The Tribunal then reviewed the evidence that was before it, including that the applicant applied for a CAT determination before her non-catastrophic benefits were exhausted. The Tribunal also reasoned that under section 45(6) of the Schedule, the applicant is entitled to payment of benefits at the catastrophic impairment rate for expenses incurred before she was determined to be catastrophically impaired. As a result, the Tribunal found no prejudice to the applicant. Accordingly, it determined there was no merit to this aspect of the claim for an award.

53On reconsideration, the applicant argues the onus was on the respondent to provide evidence that it had advised the applicant. The Tribunal found that the respondent might have filed such evidence had it been aware of the particulars of the award. I see no error in this finding. The applicant did not file particulars, and therefore the respondent did not know the case to be met.

54The applicant also points to a letter dated February 8, 2018 advising the applicant that she had exhausted her non-CAT limits and submits it was before the Tribunal at the time of the hearing, and therefore the Tribunal erred. I find, however, that even if the Tribunal erred in stating that the applicant applied for a CAT determination before her non-catastrophic benefits were exhausted, this would not likely have changed the outcome of the decision. In my view, the timing of the applicant’s application for CAT was not determinative of whether the Tribunal found merit in the claim for a special award. As noted above, the Tribunal gave several reasons why it found the was no merit in this aspect of the award claim. While these reasons included that the applicant applied for a catastrophic determination before her attendant care benefits were no longer payable, the Tribunal also noted that it had not been provided with the particulars of the award, that it had no evidence as to whether the respondent advised the applicant how to apply for catastrophic determination or not, and that there was no prejudice to the applicant. Accordingly, I find the applicant has not established grounds for reconsideration under Rule 18.2(b). She has not shown that the Tribunal’s finding with respect to the timing of the CAT application would likely have changed the outcome of the decision.

PIPEDA

55The applicant argues the Tribunal erred in fact in determining that making a Personal Information Protection and Electronic Documents Act, S.C, 2000, c.5 (“PIPEDA”) access request meant that the applicant had received all documents. The applicant submits this is a conclusion unsupported by any evidence that the requests were complied with by the respondent. The applicant argues that the new evidence it sought to submit under Rule 18.2(d) demonstrates that the respondent both directed its agent RIDM not to comply with PIPEDA,and did not allow assessors to comply with the Tribunal’s order.

56The respondent submits that the Tribunal actually found that the applicant had “all relevant documents” based on her submissions and evidence. It submits that the Tribunal’s finding was supported by the evidentiary records. It also argues that this is not a material fact, and any error would not have resulted in a different outcome.

57At paragraph 64, the Tribunal noted that an IE report from Dr. Louis Weisleder from a 2013 accident was not disclosed in the productions from a PIPEDA request. The Tribunal stated that it was unable to find that this was a reason to award a special award against the respondent as the Tribunal was not provided with any evidence it was deliberate. At paragraph 66, the Tribunal noted that the applicant had legal representation, had demonstrated she was capable of making numerous PIPEDA requests and therefore had “all the relevant documents” for the purposes of providing them to the IE assessors.

58I find the Tribunal was not making a finding of compliance with the PIPEDA request, it was noting that the applicant had demonstrated her ability, through her legal representation, to submit relevant documentation to the IE assessors. I see no error of fact in the Tribunal’s finding and no grounds for reconsideration.

Error in finding assessments were reasonable and necessary

59The applicant argues the Tribunal erred in fact at paragraph 27 when it found the assessments were reasonable and necessary. She relies on the evidence she sought to introduce under Rule 18.2(d). I have already found that evidence does not meet the test under Rule 18.2(d). Furthermore, I find the applicant is attempting to reargue her case, which is not grounds for reconsideration.

Copies of correspondence

60The applicant argues the Tribunal erred at paragraph 67 when it found the respondent had provided copies of correspondence with its assessment agencies. She relies on the evidence she sought to introduce under Rule 18.2(d). I have already found that evidence does not meet the test under Rule 18.2(d). I also find the applicant is attempting to reargue her case, which is not grounds for reconsideration.

Application of wrong test for discrimination

61The applicant submits that the Tribunal erred at paragraph 39 when it created and applied the wrong test for discrimination. I find the applicant has not met her onus as she has not identified the legal test that should have been applied, or how the alleged error would likely have affected the outcome of the decision.

Rule 18.2(a)

62The applicant also seeks reconsideration under Rule 18.2(a). The test in Rule 18.2(a) is that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. I find the applicant has not established grounds for reconsideration under Rule 18.2(a) for the following reasons.

Reasonable apprehension of bias

63I find the applicant has not satisfied the legal test for a reasonable apprehension of bias for the following reasons.

64While the applicant makes reference to the fact an “unbiased adjudicator” would have made different findings than the adjudicator in this case, she did not argue bias in the submissions that accompanied her request for reconsideration. It is only on reply that the applicant argues bias as a ground for reconsideration. These reply submissions are subject to my procedural order outlined above, and several of the documents upon which the applicant relies are also the subject of the Tribunal’s September 20, 2023 Motion Order and are therefore not before me. I have considered only the references to bias in the applicant’s reconsideration request, not the new argument made on reply.

65The test for whether 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 v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394.

66In 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 and substantial grounds. Because bias allegations call into question the personal integrity of the adjudicator and the integrity of the administration of justice, establishing bias requires cogent evidence. Suspicion or conjecture is not enough: R v. S(RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484 at para 117. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: Ontario Provincial Police v. MacDonald, 2009 ONCA 805.

67I find that the applicant has not met her onus to demonstrate a reasonable apprehension of bias. She has not cleared the high threshold for rebutting the strong presumption of impartiality. The applicant has simply referenced what an “unbiased adjudicator” would find, thereby implying the adjudicator who made the initial decision is biased. The applicant has not established the alleged facts that underlie the implied allegation of bias. She has not substantiated her argument. I find no bias on the part of the adjudicator and no grounds for reconsideration.

Responsibility for delays in receiving treatment

68The applicant argues it was procedurally unfair and a violation of natural justice for the Tribunal to have found that the delays in the applicant receiving treatment were not a result of the respondent’s actions. The applicant cites the fact that the respondent did not provide the required notices and withheld the information that the applicant was CAT for half a year, neither of which the applicant had control over. In support of her argument, the applicant relies on evidence she sought to have admitted under Rule 18.2(d).

69As noted above, I find the Tribunal conducted a thorough analysis of the issue of the delays in receiving treatment and concluded that the respondent was not responsible for the delays. The Tribunal provided reasons for its determination in paragraphs 24 and 25 of the decision. The applicant relies on evidence that does not meet the test under Rule 18.2(d). She argues that the Tribunal should not have made the finding that it did. This is not grounds for reconsideration, it is an attempt to reargue the case.

Surveillance evidence

70The applicant also argues the Tribunal violated procedural fairness at paragraph 53 when it determined that the respondent’s surveillance of the applicant was not conducted to intimidate the applicant. The applicant does not identify in her submissions how this finding violates the rules of procedural fairness.

71I find that the Tribunal addressed the question of surveillance at paragraphs 53 and 54 of the decision. It found that it was reasonable for the respondent to conduct surveillance, and accepted the evidence of Mr. Jones, the respondent’s adjuster, that he did not provide the surveillance to the IE assessors as it was too old when he was arranging the IEs. I see no violation of procedural fairness in the Tribunal’s treatment of the surveillance evidence.

72For the reasons set out above, I find the applicant has not established grounds for reconsideration under Rule 18.2(a).

CONCLUSION & ORDER

73The applicant’s request for reconsideration is dismissed.

___________________

E. Louise Logan

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal