Abara v. Registrar of Motor Vehicles, 2024 CanLII 56778

RECONSIDERATION DECISION

Before: Avril A. Farlam, Vice-Chair

Licence Appeal Tribunal File Number: 15568 MED

Case Name: Abara v. Registrar of Motor Vehicles

Written Submissions by:

For the Appellant: Uko Abara, Self-Represented

For the Respondent: Marina Kwak and Rebecca Williams, Students-at-Law

OVERVIEW

1On April 8, 2024, the appellant requested reconsideration of the Tribunal’s decision released March 18, 2024 (“decision”).

2In the decision the hearing panel, which was comprised of Dr. E. Weinberg and myself, confirmed the Registrar’s decision to suspend the appellant’s driver’s licence. The Tribunal also dismissed the appellant’s request for a confidentiality Order and declined to award the appellant costs of the appeal.

3For reconsideration of decisions released on or after August 21, 2023, the 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.

4The appellant appears to rely on the grounds set out in Rule 18.2(a), that the Tribunal acted outside jurisdiction or committed a material breach of procedural fairness, and in Rule 18.2(b), that errors of law and fact were made such that the Tribunal would likely have reached a different result had the error(s) not been made.

5The appellant also submits that the decision raises a reasonable apprehension of bias and that the Tribunal acted in bad faith. This would fall within the scope of Rule 18.2(a) as a reasonable apprehension of bias involves procedural fairness.

6The appellant requests that the decision be varied to order the reinstatement of his driver’s licence, remove to his personal health information from and to anonymize “all things related to this matter” and awarding $2,000.00 costs to him against the respondent for the case conference and the hearing. He also seeks a “declaration” that the Tribunal committed the “stated errors of law and breaches of procedural fairness”, and “any other costs and relief that is just.”

7The respondent submits that the Tribunal made no error and that if any error was made, which is denied, the error is not one for which the Tribunal can provide a remedy on reconsideration. The respondent also submits that the appellant has not established any of the criteria for reconsideration and requests that the reconsideration request be dismissed.

8The Tribunal’s Order dated April 11, 2024 allowing the Request for Reconsideration to proceed referred to me the issue of whether or not to consider the appellant’s submissions that exceed the prescribed page limits. Although the appellant’s submissions exceed the page limits set out in Rule 18.1(c), I have considered them.

RESULT

9The appellant’s request for reconsideration is dismissed.

ANALYSIS

a) The Tribunal did not act outside its jurisdiction nor commit a material breach of procedural fairness

10The appellant submits that his cross-examination of the Registrar’s witness was limited by the Tribunal. The respondent denies that this occurred and submits that the appellant was provided with a lengthy opportunity to cross-examine.

11The hearing panel did not limit the appellant’s cross-examination. The panel did remind the appellant during the hearing of the amount of time allotted to his hearing but allowed him to continue as he saw fit after the reminder. In the end, the panel was satisfied that the appellant had been given sufficient time to disclose fully and fairly all matters relevant to the issues in the proceeding. Even if the reminder about time could be construed as limiting the appellant’s cross-examination, which I do not find, the Tribunal may reasonably do so in accordance with s. 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) where it has satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.

12Further, the hearing was allotted one-half day of hearing time, specifically from 9:30 a.m. to 12:30 p.m. on February 13, 2024. The hearing ended at 12:31 p.m. The appellant did not request more hearing time.

13The appellant’s only witness at the hearing was himself. Although the Tribunal’s January 30, 2024 Case Conference Report and Order (“CCRO”) records in paragraph 24 that the appellant will make arrangements to “subpoena 4 possible witnesses”, the appellant did not summons any witnesses for the hearing. The appellant did not seek an adjournment of the hearing in order to have more time to summons any witness(es).

14Although the appellant submits that the Tribunal “unlawfully expanded the scope of appeal”, there is no basis for this submission. The respondent’s correspondence giving notice of the suspension of the appellant’s driver’s licence states, “This suspension is a result of the ministry receiving a report(s) indicating that you have a condition that affects your ability to drive safely. The reported condition(s) is (are): seizure.” Paragraph 7 of the CCRO made the respondent’s position clear that the “…condition is prolonged loss of consciousness and possible seizure but more information is needed.”

15As set out in paragraphs 38 and 39 of the decision, the issue in dispute at the time of the hearing was “…whether the appellant suffers from a medical condition, namely prolonged unconsciousness, possible seizure, that is likely to significantly interfere with his ability to drive a motor vehicle safely.” The issue for the hearing was not “expanded” by the Tribunal as the appellant suggests but rather arose from the medical evidence of the appellant’s physician. As set out in paragraph 41 of the decision, the medical report from the appellant’s neurologist given to the respondent prior to the decision to suspend the appellant’s driver’s licence indicates that the appellant suffered from an episode of “prolonged loss of consciousness and seizure could not be ruled out.”

16As set out in paragraph 42 of the decision, the appellant was aware of the medical evidence, and the issue, and directed his testimony, cross-examination, evidence, and submissions at the hearing to disputing that he had a seizure and disputing that he had a prolonged loss of consciousness. For the reasons set out in paragraphs 43, 44, and 45 of the decision, the Tribunal did not accept the appellant’s testimony as set out in paragraph 42 of the decision.

17In paragraph 45 of the decision, the Tribunal found that the evidence establishes on a balance of probabilities that the appellant suffers from prolonged unconsciousness, possible seizure. The medical condition report before the Tribunal states that the author is awaiting a brain MRI and EEG. In the end, the panel made a decision based on the medical and other evidence before it and concluded that “While what has caused this medical condition remains uncertain, the fact that he suffers it has been established on a balance of probabilities at this time”. Nothing in the decision precludes the appellant from providing updated information to the Registrar in the future if his medical condition changes, nor does the decision preclude a future appeal if the Registrar maintains its decision to suspend his licence after it has considered any new information from the appellant.

18In view of the foregoing, the appellant’s suggestions on reconsideration that the Tribunal engaged in improper conduct, or allowed the respondent to do so at the hearing, or that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness is without basis.

19I find that the appellant has not established this ground for reconsideration under Rule 18.2 (a).

b) The Tribunal did not make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made

20The appellant submits that in not granting a confidentiality order to the appellant as he requested at the hearing, the Tribunal erred in the treatment of his personal health information.

21Having reviewed the decision, I find no error of fact or law in it.

22The appellant’s request for a confidentiality order was heard, considered and denied for the reasons set out in paragraphs 6 through 31 of the decision after considering the applicable law and the open court principle.

23Further, the refusal to grant a confidentiality order, even had it been incorrect, which it is not, would not affect the decision on the merits, specifically the Tribunal’s decision to confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

24The appellant also submits that the Tribunal omitted consideration of the appellant’s submissions. This submission is unsupported.

25While it is well established that the Tribunal need not refer to every piece of evidence, authority cited or submission made, it is clear from paragraphs 4, 5, 6, 8, 21, 32, 35, 37, 42, 43, 45, 46, 47, 48, 49, 52, 54, and 58 of the decision that the appellant’s evidence and submissions were taken into account.

26Although the appellant submits that the Tribunal’s decision is not based on “concrete medical information”, the medical evidence before us was reviewed thoroughly as set out in paragraphs 1, 41, 43, 44, 45, 46, 47, 48, 49, 51, 52, 53, 55, and 56 of the decision and is a reasonable conclusion based on the medical and other evidence on the record before us at the hearing.

27There is no error in the Tribunal not making a definitive conclusion on whether the appellant’s loss of consciousness was caused by a seizure in circumstances where the appellant’s physicians were still investigating the cause of the loss of consciousness.

28The Tribunal made no error in concluding in paragraphs 52, 53, and 56 of the decision that the appellant’s loss of consciousness occurred and is clearly inconsistent with the safe operation of a motor vehicle.

29Again, it is well established that the Tribunal need not refer to every submission or authority cited by a party in its decision. Although the appellant submits that the Tribunal willfully misinterpreted or omitted Tribunal case law, other Tribunal decisions are not binding on this panel and are confined to their own facts.

30Although the appellant submits that the decision contains a “dishonest description” of the appellant’s submissions, there is no merit to this submission. The decision refers to the appellant’s submissions as set out above and, having reviewed the decision, I find no misdescription of the appellant’s submissions and no basis for an assertion of “dishonesty”.

31Although the appellant submits that the Registrar failed to follow its own process before suspending the appellant’s driver’s licence, the evidence at the hearing failed to establish this. The appellant made submissions at the hearing critical of the respondent’s position as set out, for example, in paragraph 47 and 48 of the decision, but we found no evidence to support the appellant’s criticisms or contravention of his human rights as related to the issues before us at the hearing. These submissions were made at the hearing. Reconsideration is not an opportunity to re-argue, in a new way, submissions made at the hearing. Further, s. 19 of Ontario Regulation 340/94 made under the Highway Traffic Act provides that processes and requirements relating to drivers’ licences apply despite the Human Rights Code.

32The appellant also submits that his physician’s medical report was not made in good faith. This submission was put forward by the appellant at the hearing without any evidence to support it. There is no evidence to support it on reconsideration. The appellant brought forward various statements made by unknown persons on the internet criticizing his physician. This material was found to be hearsay and not relevant to the appeal as set out in paragraph 54 of the decision and I see no error in it. The Tribunal is not an appropriate forum for the appellant to engage in personal criticisms of his physician.

33In view of the foregoing, the appellant’s suggestions on reconsideration that the Tribunal made error of law or fact, let alone an error of law or fact that would likely have resulted in a different result had the error not been made, is without basis.

34I find that the appellant has not established this possible ground for reconsideration under Rule 18.2 (b).

c) There is no basis to support an allegation of bias or reasonable apprehension of bias of the Tribunal

35Although the appellant submits that the decision raises a reasonable apprehension of bias, I find that this is unsupported by any evidence. The fact that a decision is unfavourable to a party does not demonstrate that the panel was biased against that party.

36The test for reasonable apprehension of bias exists was set out by the Supreme Court of Canada in Commission for Justice and Liberty v. National Energy Board as follows:

[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…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not [the decision-maker], whether consciously or unconsciously would not decide the matter fairly?

37The Ontario Court of Appeal has said in Ontario Provincial Police v. MacDonald, 2009 ONCA 805 at paragraph 44: “There is one final, essential element that informs this analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one.”

38It is well established that the presumption of impartiality and integrity applies to administrative decision makers including this Tribunal.

39Having reviewed the decision, I find no evidence of reasonable apprehension of bias. As set out above, the appellant’s evidence, submissions and legal authorities were fully and fairly considered. The appellant has not demonstrated otherwise.

40It is well established that a reasonable apprehension of bias, if perceived by a party, must be raised by the party as soon as reasonably possible as set out in R. v. Nero, 2016 ONCA 160 at paragraphs 33-36. Had the appellant thought there was a reasonable apprehension of bias prior to the conclusion of the hearing, he could have brought a motion to have the panel recuse themselves but did not do so.

41As the Ontario Court of Appeal has said at paragraph 54 of MacDonald, “absent other factors, it is nonsensical to suggest that a reasonably conducted hearing or a reasonable ruling can give rise to an apprehension of bias”.

42Although the appellant suggests that “Adjudicator Weinberg indicated a personal relationship with the neurologist” and should have recused herself and “the aura follows Vice-Chair Farlam”, this submission is not accurate. Dr. Weinberg did not indicate she had a personal relationship with the appellant’s neurologist. If she had said this, it would be reasonable to expect the appellant to bring a motion for recusal at that time. The appellant is incorrect. This statement was never made by Dr. Weinberg.

43I am not satisfied that the appellant has met the onus of establishing a reasonable apprehension of bias. This is a high bar and the appellant has not met it.

44Further, the appellant appears to suggest that the decision is in bad faith. There is no evidence to support this submission and, having reviewed the decision, I see no evidence of bad faith.

45I find that the appellant has not established bias or bad faith as a ground for reconsideration under Rule 18.2 (a).

d) There is no basis to vary the denial of costs order in the decision

46The appellant submits that the Tribunal erred in not awarding costs to him as he requested.

47Costs of a proceeding are within the discretion of the Tribunal under Rule 19 of the Rules. The Tribunal exercised its discretion reasonably and in accordance with Rule 19 as set out in paragraph 60 of the decision. I see no error with respect to costs.

48The 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.

49A reconsideration is a limited, error correcting exercise. It is not an appeal nor an opportunity to re-argue a case.

CONCLUSION & ORDER

50I find that the appellant has not established any of the grounds for reconsideration in Rule 18.

51The grounds for reconsideration of a Tribunal decision are limited, specific and their purpose is to correct errors in the initial decision. In order to succeed on a reconsideration request, at least one of the grounds must be established. Because the appellant has requested reconsideration, the onus is on him to establish his grounds and he has failed to do so. The appellant’s reconsideration submissions are an attempt to reargue his case and achieve a different outcome.

52Dissatisfaction with the decision is not a ground of reconsideration. The Tribunal has long recognized that a reconsideration is not an opportunity to reargue one’s case, ¹ nor is it a hearing de novo or an appeal.²

53For the reasons noted above, I dismiss the appellant’s request for reconsideration of the decision.

Avril A. Farlam Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1N.D. v. Aviva Insurance Company, 2021 CanLII 64232; N.R. v. Unifund Assurance Company, 2020 CanLII 101753; Gore v. Rusk, 2022 ONSC 2893 at para. 50 (Div. Ct).
2. 2Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 at para. 22 (Div. Ct.).