Licence Appeal Tribunal File Number: 23-013557/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:
Annisha Sergeant
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Imtiaz Hosein, Counsel
Christos Kakaletris, Articling Student
For the Respondent:
Mai Nguyen, Counsel
Heard by Videoconference:
November 25-29, 2024
OVERVIEW
1Annisha Sergeant, the applicant, was involved in an automobile accident on May 3, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance, 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 impairment (“CAT”) as defined by sections 3(2)e and 3(2)f of the Schedule?
ii. Is the applicant entitled to $15,005.00 for catastrophic assessments, proposed by Okell Rehabilitation Services in a treatment plan/OCF-18 (“plan”) dated October 6, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has sustained a catastrophic impairment as defined by section 3(2)f of the Schedule.
4The applicant is entitled to $2,000.00, plus any applicable taxes and interest, for a psychiatric catastrophic assessment, proposed by Okell Rehabilitation Services in a plan dated October 6, 2023.
5The respondent is not liable to pay an award under s. 10 of Reg. 664.
ANALYSIS
Background
6The subject motor vehicle accident occurred on May 3, 2013. The applicant emphasized during the hearing that there is no further funding available under the Schedule unless I find that the applicant’s impairments meet the definition of catastrophic impairment because more than 10 years have elapsed since the date of the accident. The respondent advised that $17,571.32 in medical and rehabilitation benefits had been paid to date and argued that the applicant’s impairments were not caused by the subject accident. The respondent points to a history of two motor vehicle accidents occurring back-to-back on February 12 and 13, 2007 as being responsible for the applicant’s complaints.
Has the applicant sustained a catastrophic impairment as defined by section 3(2)(f) (“Criterion 8”) of the Schedule?
7I find the applicant has sustained a catastrophic impairment as a result of the accident as defined under Criterion 8.
8Under the version of the Schedule that was in effect at the time of the accident, the applicant must prove on a balance of probabilities that, as a result of the accident, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), she suffers from a marked impairment (“Class 4”) or an extreme impairment (“Class 5”) in at least one area of functioning, due to a mental or behavioural disorder. The areas of functioning and levels of impairments are illustrated in the following table, with “Class 1” equating to no impairment omitted from the table.
| Area or aspect of functioning | Class 2: Mild impairment | Class 3: Moderate impairment | Class 4: Marked impairment | Class 5: Extreme impairment |
|---|---|---|---|---|
| Activities of daily living Social functioning Concentration Adaptation |
Impairment levels are compatible with most useful functioning | Impairment levels are compatible with some, but not all, useful functioning | Impairment levels significantly impede useful functioning | Impairment levels preclude useful functioning |
9The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, as established in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
10The applicant’s position is that she meets the definition of catastrophic impairment under this criterion because she suffers from a Class 4 or marked impairment in both social functioning and adaptation due to a mental or behavioural disorder. The applicant’s claim is based on psychiatric diagnoses of somatic symptom disorder, major depressive disorder, and post traumatic stress disorder. The respondent’s medical evidence is that there should be no rating in any of the four areas of functioning partly because of the applicant’s score on an M-FAST test. The respondent also argues that the subject accident was not the cause of the impairments the applicant may have.
Summary of Findings
11In my view, the applicant meets the definition of a marked impairment in social functioning as a result of the subject accident, on a balance of probabilities. Examples illustrating this impaired functioning show the applicant’s inability to get along with others, such as family members, friends and neighbours. The applicant’s impaired social functioning is demonstrated by a history of altercations, contact with police, avoidance of interpersonal relationships, and social isolation.
12In analyzing the parties’ psychiatric assessment reports, I give less weight to the respondent’s psychiatric report. As it relates to social functioning, I find that the applicant’s two psychiatric reports, approximately five years apart, are consistent with each other and with the applicant’s testimony.
13I do not find the respondent’s surveillance evidence persuasive in negating the applicant’s overall impairment in social functioning. In analyzing the respondent’s argument about causation and in comparing the applicant’s pre- and post-accident life, I find that the subject 2013 accident is not the only cause of the impairment but is a necessary cause, which is sufficient to meet the causation test.
Social Functioning
14For social functioning, the Guides specify what needs to be considered:
Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, land lords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. It is helpful to give specific examples illustrating the impaired functioning.
Strength in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behavior, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered. Social functioning in work situations may involve interactions with the public, responding to persons in authority such as supervisors, or being part of a team.
15The applicant relies on a Catastrophic Impairment Determination Independent Psychiatric Evaluation report based on an evaluation by Dr. Shahzad Shahmalak completed June 17, 2019. Dr. Shahmalak provides a marked impairment rating in the area of social functioning. Dr. Shahmalak bases the rating on the applicant’s decreased social activities, withdrawal from and avoidance of relationships, and a decrease in patience to “deal with people”. Dr. Shahmalak noted poor eye contact by the applicant during the assessment. Dr. Shahmalak rated the remaining three areas of functioning as each having a Class 3 or moderate impairment.
16The applicant also relies on an Independent Psychiatric Evaluation report completed by Dr. Emily Gavett-Liu, dated May 6, 2024. Dr. Gavett-Liu provides a marked impairment rating in two areas, namely, social functioning and adaptation. The report bases the social functioning rating on the applicant’s withdrawal from networking, withdrawal from attending and hosting events and festivals, and her general social isolation. The report notes the applicant’s presentation was depressed, irritable and anxious and her affect was tearful and constricted. Dr. Gavett-Liu provides a Class 2 mild impairment in concentration, persistence and pace, and provides a Class 3 moderate impairment in her activities of daily living.
17The respondent relies on a psychiatric evaluation in December 2019 resulting in a report by Dr. Stephanie Wiesenthal forming part of a Multidisciplinary Catastrophic Impairment Assessment Report dated January 9, 2020. Dr. Wiesenthal provides no rating in any of the four areas of function, while also stating that “any impairment that she did incur is mild”.
18The respondent argues causation in its response to the applicant, pointing to two back-to-back accidents the applicant was involved in occurring on February 12 and 13, 2007. It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121. To satisfy this test, the applicant must prove on a balance of probabilities that, “but for” the accident, the applicant would not have suffered the impairments which form the basis for the application for CAT status. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, the Court states that the accident need not be the only cause of the impairment, but a necessary cause.
19In analyzing causation, it is necessary to compare the applicant’s pre- and post-accident life. In my view, the 2013 accident is not the only cause of the impairment but is a necessary cause, which is sufficient to meet the test. Dr. Gavett-Liu’s report states that although the applicant was experiencing ongoing medical issues from the 2007 accidents, three months prior to the 2013 accident her mental health was self-described as “a lot better”. The applicant is quoted as stating, prior to the 2013 accident, that she “finally felt like [she] was getting back on track from the first set of accidents.” Dr. Gavett-Liu’s report states, “Her past difficulties may have also made her more vulnerable with respect to future stress and trauma. However, she demonstrated a great deal of resilience to overcome past stressors.”
20The applicant testified that she had never been arrested prior to the subject accident but has had a number of altercations and encounters, including with the police since the accident. In one instance, she was arrested, charged and convicted in November 2022 relating to an assault between August 1, 2021 and August 31, 2021. The applicant submits that she was successful on appeal, and I was referred to a decision cited as 2024 ONSC 3277. I understand from submissions and a review of this decision that the court set aside the conviction and ordered a new trial because the trial judge was found to have erred. The error cited in the decision is that the trial judge did not make a finding regarding the charge of assault with a weapon and instead made a finding on a charge of simple assault, which the applicant was not charged with. The court noted it was unclear if this was a clerical error.
21The applicant also described another instance where she was arrested after an altercation with her neighbor. The respondent argues that Dr. Wiesenthal’s report indicates the applicant was accused of assaulting a neighbor when she was in grade 12 so there is a history going back to periods prior to the subject accident. However, upon review, the report states the applicant lived with a friend in grade 12. Separately, it goes on to mention that the applicant was accused of assaulting a neighbor. Neither Dr. Gavett-Liu nor Dr. Wiesenthal’s reports make it clear when the instance with the applicant’s neighbor took place or if these are single or separate incidents. However, the applicant testified that she feels the altercation with the neighbor would not have occurred if she did not require assistance from others as a result of the subject accident. Based on the applicant’s testimony, in my view, the incident described by the applicant with the neighbor took place after the 2013 accident.
22Dr. Gavett-Liu’s report states one other instance of contact with the police relating to an altercation with an ex-partner. Neither Dr. Gavett-Liu nor Dr. Wiesenthal explore the timeline of this event. I agree with the respondent that it is unclear if this took place before or after the subject accident. For this reason, it does not assist me in my analysis.
23While the respondent argues that the criminal charges and altercations are not referenced in the applicant’s medical record other than the applicant’s self reporting to Dr. Gavett-Liu, I find the applicant’s testimony on the subject genuine, and the timeline of events match the information provided by the collateral information from the applicant’s mother, and the November 2022 conviction.
24The applicant testified that her daughter no longer lives with her. There is a dispute between the parties regarding the applicant’s ability to care for her daughter. The applicant was raising her daughter as a single mother prior to the accident until the daughter was required to stay with the applicant’s mother. The respondent argues that the applicant was sufficiently capable of taking care of her daughter post-accident and is observed in surveillance dropping her daughter to school, to extra-curricular activities after-school, and taking her to stores to buy things for her. In my view, while these instances have elements of social functioning, they more strongly relate to the applicant’s activities of daily living, in this case. It is not disputed that the applicant’s daughter was in the care of the applicant pre-accident and is no longer in the care of the applicant.
25The applicant testified that while her daughter was living in her care, her daughter would call and request help from the applicant’s mother, but this was not initiated by the applicant. The applicant’s mother stated to Dr. Gavett-Liu, that she does not hear from the applicant unless she makes an effort to check in with the applicant herself. The applicant’s mother stated, in her opinion, the applicant was too preoccupied with her injuries from the accident to be able to care appropriately for her daughter which led to altercations. In the opinion of the applicant’s mother, “Parenting was lacking. I would go there and the whole house was a mess, dirty clothes piling up, dishes overflowing. It wasn’t a good environment for anyone to be in, much less a teenage child.” This reference to the daughter being a teenager assists me in determining which period the applicant’s mother is speaking about. Since the applicant’s daughter was 13 years old in August 2021 when she stopped living in the care of the applicant, the statements made by the applicant’s mother relate to observations of the applicant’s social functioning after the 2013 accident rather than prior to this accident.
26The applicant also received assistance for tasks from someone she refers to as a longstanding friend, but this relationship has since ended. According to the applicant’s testimony, this assistance she received included doing laundry, getting groceries, taking care of the applicant’s daughter together with the friend’s children. The applicant testified that the friend and his children would stay overnight at times, and the friend would assist in getting all the kids ready for school and would drop them off. The applicant stated that the friend wanted to advance the relationship with her. However, the applicant felt incapable of handling a relationship and the pressure that comes with it. As a result of being unable to keep track of conversations and not being able to maintain friendships, eventually they parted ways. I found the applicant’s testimony consistent with the marked impairment rating in Dr. Shahmalak’s report in part based on withdrawal from and avoidance of relationships, and a decrease in patience to “deal with people”
27I give Dr. Wiesenthal’s Criterion 8 report less weight because it does not provide a rating or helpful analysis of the applicant’s social functioning. The report cites the applicant not passing the M-FAST test, described as a 25-item screening interview to help assess the likelihood that an individual is feigning psychiatric illness. The report also cites other reasons for not providing a rating including that the applicant’s symptoms “seem out of keeping with the length of time since the accident”, the MRI results do not depict pathology, and based on the findings of other medical assessors. Dr. Wiesenthal’s opinion that the applicant’s psychiatric symptoms “seem out of keeping with the length of time since the accident” is weakened by her testimony in which she acknowledges it is possible the applicant’s psychiatric health could have deteriorated since her assessment in 2019, which would add approximately five additional years to the length of time that has passed after the accident.
28Dr. Wiesenthal’s report states that the results of the assessment and a review of the concurrent occupational therapy data do not support a valid Class 4 or Class 5 rating. The report concludes that no diagnosis is provided as a result of the M-FAST test result even though the applicant described symptoms of adjustment disorder. I give this analysis less weight because it dismisses the applicant’s reporting largely on the basis of the applicant’s score of 8 on the M-FAST screener test which the report describes as “indicative of feigning.” This report is weakened because Dr. Wiesenthal testified that this test is not required to be administered by the Guides, and that it is not required prior to providing a psychiatric diagnosis. I understand that the test helps assess a likelihood of feigning, does not confirm feigning and it is up to the assessor to use the M-FAST screener as a tool in their assessment as one piece of a larger puzzle. Since Dr. Wiesenthal did not clearly conclude the applicant was feigning, it would have been helpful if the report had engaged in a meaningful analysis of the four areas of function from a Criterion 8 perspective. A more wholistic approach would have included recognizing and explaining the M-FAST score while also engaging with the quality of the applicant’s social relationships, as one example. The applicant’s impairment in social functioning was rated and discussed by Dr. Shahmalak prior to Dr. Wiesenthal’s report, and Dr. Wiesenthal’s report referenced the ratings from that assessment.
29The respondent provided evidence in the form of surveillance and testimony from the applicant of some examples of strengths in social functioning. One such example is that the applicant is able to interact with cashiers appropriately when ordering coffee or making other purchases. Another example is that the applicant completed courses post-accident and worked with a partner to complete group assignments. The applicant’s submissions clarified that the applicant is not claiming she is unable to order coffee, for example. The applicant’s testimony suggests she worked with a partner to complete assignments that required a partner. Also, that the partner was someone who sat in close proximity to her and that is why they ended up working together, when required. In my view these examples do not negate the totality of the evidence that the applicant’s impairment levels significantly impede useful functioning in her roles as a mother, friend, significant other and as a neighbor. Even if I accept that the applicant is able to communicate with restaurant or store staff, or that she is able to complete course assignments with a partner, in this case, she is still significantly impeded in her useful social functioning which is sufficient to meet the applicable test.
30For the reasons above, I find that the applicant meets the definition of a Class 4 marked impairment in her social functioning. Since I have found one Class 4 marked impairment, it is not necessary to engage with any other areas of the applicant’s functioning in order to meet the applicable test for CAT, in this case, under the version of the Schedule that was in effect at the time of the accident.
Is the applicant entitled to $15,005.00 for catastrophic assessments proposed in a plan dated October 6, 2023?
31The applicant is entitled to $2,000.00 for catastrophic assessments proposed in a plan dated October 6, 2023.
32To receive payment for a catastrophic assessment report under s. 25(1)5 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the examination is reasonably necessary as a result of the accident and the fees charged are reasonable.
33Notably, for an applicant to prove that an assessment is reasonably necessary or required, it is not crucial for the applicant to prove the actual existence of a condition; rather, the applicant must prove that there is some objective evidence to suggest that some condition exists and warrants investigation via an assessment.
34The applicant had already submitted an OCF-19 Determination of Catastrophic Impairment form authored by Dr. Getahun in addition to the following assessment reports in 2019:
i. Neuropsychology,
ii. Orthopaedic Surgery,
iii. Occupational Therapy, and
iv. Psychiatry.
35The applicant relied on a copy of the OCF-18 attached to the back of the respondent’s denial letter dated October 26, 2023 in which a single page is attached, including parts 11 and 12 of the plan. The plan proposes catastrophic determination assessments and documentation support activities from four health care providers. The descriptions of the proposed services and the amounts claimed for each provider, before taxes in the amount of $1,105.00, are stated in the plan as follows:
i. Lauren Okell, Occupational Therapist, $5,000.00 for three assessments.
ii. Dr. Rogenstein, General Practitioner, $2,000.00 for one assessment and $400.00 for two documentation support activities.
iii. Dr. Getahun, Orthopaedic Surgeon, $2,000.00 for one assessment.
iv. Dr. Kiraly, Psychiatrist, $4,500.00 for two assessments.
36The applicant argues her condition deteriorated after the completion of assessments in 2019, requiring further investigation. While Dr. Wiesenthal, as one example, agrees that it is possible the applicant deteriorated since the time of the previous assessments, the respondent argues there are no contemporaneous records from 2019 to 2023 showing the applicant’s deterioration which would have indicated further investigation is necessary. On this point, I agree with the respondent that while the applicant may have felt her condition had deteriorated, the applicant has not established that the respondent was provided some objective evidence to warrant entitlement to $15,005.00 for further CAT determination assessments.
37Additionally, the Tribunal consistently holds that bifurcating assessments to attract a higher quantum is not appropriate where the Schedule sets a $2,000.00 limit per assessment. The applicant falls short in proving entitlement to this plan because the applicant did not argue that the overall costs claimed are reasonable fees, which is required by s.25(1)5 of the Schedule.
38I also reviewed this claim with a view to each separate provider. I recognize that I have relied on Dr. Gavett-Liu’s report in my analysis of the applicant’s social functioning impairment under Criterion 8. This report agrees with the social functioning rating provided by Dr. Shahmalak in 2019 which I have accepted. Although the respondent argues it was duplicative as a result of the 2019 assessment, I find that the assessment was necessary to investigate the applicant’s post 2019 social functioning status as a result of certain events in the applicant’s life which have been reviewed in this decision. Dr. Gavett-Liu’s report did assist me as to the applicant’s post-2019 status, when put together with the applicant’s testimony at the hearing, sufficiently to warrant entitlement to $2,000.00, plus any applicable taxes.
39However, the applicant is not entitled to duplicative assessments by the Orthopaedic Surgeon and the Occupational Therapist because the applicant has not established necessity of further investigation by these providers. In addition, the Occupational Therapist’s proposed assessments are split into three separate assessments, and the applicant has not established why that would be reasonable or necessary. I note that the assessment proposed by the General Practitioner does not seem to be a duplicate of one of the 2019 assessments. However, the applicant has not established a necessity for such an investigation. In addition, even if they were not duplicative, the applicant has not established the nexus of these assessments to the post-2019 mental and behavioural deterioration that the applicant’s testimony and submissions focused on from a Criterion 8 perspective.
40For these reasons, the applicant has established on a balance of probabilities that the applicant is entitled to $2,000.00 plus any applicable taxes for Dr. Gavett-Liu’s psychiatry assessment.
Interest
41Interest applies on the payment of the overdue benefit, the psychiatric catastrophic assessment, pursuant to s. 51 of the Schedule.
Award
42The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the respondent is not liable to pay an award.
43The applicant argues that an award may be granted on the determination of catastrophic impairment. However, the onus is on the applicant to prove on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of benefits so as to be entitled to an award. This Tribunal has referred to an insurer’s conduct that is inflexible, stubborn, immoderate or unyielding to warrant an award; as an example, if the insurer clearly went against the recommendations of its assessor that were in favour of the insured, then an award would be warranted, as found in 18-002994 v Aviva Insurance Canada, 2019 CanLII 76837 (ON LAT) at paragraph 22. The threshold for an award is high.
44While I have found in favour of the applicant in her claim for a further psychiatric assessment by Dr. Gavett-Liu, the applicant has not established that the insurer unreasonably withheld or delayed any payment of benefits. As it relates to the applicant’s CAT status, there was a genuine dispute, and the respondent was entitled to rely on the reports of its s. 44 assessors. The respondent is not automatically liable to pay an award as a result of my decision disagreeing with its positions on either the applicant’s CAT status or partial entitlement to the plan in dispute.
45For the reasons above, the respondent is not liable to pay an award.
PROCEDURAL ISSUES
Applicant’s oral request to recuse myself is dismissed
46On the second day of the hearing, the applicant’s counsel requested that I recuse myself alleging that I was biased. I declined to recuse myself because I find that the applicant failed to meet the test for recusal.
47The applicant’s counsel relies on an affidavit, sworn November 26, 2024, of Christos Panayiotis Kakaletris, an articling student at Campisi LLP, the representatives of the applicant. The affidavit raises concerns stemming from the affiant’s observations on the first and second day of the hearing. The affidavit states that on the first day, the affiant observed a rectangular reflection in my eyeglasses that he describes as my computer screen but that a smaller reflection was seen at 1:10pm and again at 1:20pm which he describes as a cell phone. From this point forward, the affiant had my video pinned to his screen so it would remain enlarged while he noted his observations, stating “For the remainder of the November 25, 2024, hearing date, I saw that Adjudicator Amar Mohammed was constantly looking down in very brief intervals but there was no cell phone glare.”
48The affidavit concludes with a focus on the second day of the hearing:
I do not believe that Adjudicator Amar Mohammed can make a decision that fairly considers Ms. Sergeant’s (the applicant) testimony, during the time periods that he was on his phone and especially during at or around 10:28 until 10:33 a.m. time period.
49In support, regarding this time-period, the affidavit provides:
Throughout the duration of these approximate five minutes, Adjudicator Amar Mohammed’s disposition demonstrated he was neither paying attention, nor making any notes. This was clear to me because generally speaking, when he was not on his phone, his body position was demonstrative that that [sic] he was looking at his computer screen and the reflection on his glasses was not on [sic] his phone. During these approximate five minutes, the applicant was giving testimony about her physical, mental and psychological impairments.
50The respondent stated it would not be making submissions or participating in arguments on the applicant’s request except that the respondent does not agree with the applicant, does not share the concerns of the applicant, and has not noticed the perception being alleged.
51The applicant emphasized that there is no funding available under the Schedule unless I find that the applicant’s impairments meet the definition of catastrophically impaired because more than 10 years have elapsed since the date of the accident. Given the importance of this decision to the applicant, applicant’s counsel argued I must consider the factor discussed at paragraph 26 of Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, (“Baker”).
52While Baker discusses several factors affecting the content of the duty of procedural fairness, paragraph 26 specifically focuses on the legitimate expectations of the person challenging the decision. In my view, the Baker factors are always at play when assessing whether a sufficient level of procedural fairness has been provided to a party. However, my analysis must be guided by the test for bias as it is the governing law for the applicant’s recusal request.
53After providing the applicant a break to prepare submissions on the recusal request, the applicant relied on Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (“MacDonald”) referencing at paragraph 41, the applicable legal test for a reasonable apprehension of bias 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...”
54The decision in Macdonald then goes on to state that it is a two-part objective test. To satisfy the test, I must consider the following, as found in MacDonald 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.
55The applicant did not argue actual bias and specifically argues a perception of bias while quoting the principle that “justice must not only be done, but must also be seen to be done”. The principle is well-established. However, what an adjudicator decides to make note of during a hearing or how that adjudicator decides to make that note, if the adjudicator decides to do so at all, is not indicative of bias against a party. In the context of a video-conference hearing where multiple devices and screens are available to adjudicators in fulfilling their adjudicative functions, the applicant has not pointed to financial or personal interest in the outcome of this case or any of the factors that would be relevant to the allegation of bias.
56In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45 at para. 77, the Supreme Court of Canada noted 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.
57The facts alleged do not point to a real or perceived bias against the applicant. Since the applicant has not demonstrated a reasonable apprehension of bias, I dismissed her request to recuse myself.
Applicant’s request to obtain a video recording of the hearing is denied
58On the second day of the hearing, the applicant’s counsel, within the context of the recusal request, also requested a copy of a video recording of the hearing over the first and second day. When asked for the applicant’s authority for making the request, the applicant relied upon the principles of the duty of fairness. Applicant’s counsel also relied on my opening remarks, suggesting that I had confirmed there was such a video recording, which is incorrect.
59The respondent chose not to make any submissions except that if anything was produced to the applicant then it should be produced to the respondent as well.
60The applicant’s request was denied and I rely on three sources in denying this request. First, Rule 13.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) provides the Tribunal with authority to record a hearing, and it notes that, if such a recording takes place, it does not form part of the Tribunal’s record of proceedings. Second, the updated Practice Direction on Recordings of Hearings confirms that this practice at Tribunal hearings is regarding “audio recording of its hearings.” Lastly, my opening remarks to the parties referred specifically to an audio recording when I stated that hearing recordings are for internal use only and are not available to parties or the public.
61For the reasons above, the applicant’s request to obtain a video recording of the hearing was denied.
ORDER
62For the reasons above, I find that:
i. The applicant has sustained a catastrophic impairment as defined by the Schedule.
ii. The applicant is entitled to $2,000.00 plus any applicable taxes and interest, for a psychiatric catastrophic assessment, proposed by Okell Rehabilitation Services in a plan dated October 6, 2023.
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.
Released: April 11, 2025
Amar Mohammed
Adjudicator