CITATION: Warren v. Licence Appeal Tribunal, 2022 ONSC 3741
DIVISIONAL COURT FILE NOs.: 438/20 and 747/21
DATE: 20220624
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
McWatt ACJO, Kristjanson and Favreau JJ.
B E T W E E N:
KIERSTAN WARREN
Gus Triantafillopoulos, Counsel for the appellant
Appellant
- and -
LICENCE APPEAL TRIBUNAL and AVIVA INSURANCE COMPANY
Trevor Guy, Counsel for the respondent Licence Appeal Tribunal
Michal Baura, Counsel for
the respondent Aviva Insurance Company
Respondents
HEARD at Toronto by video conference:
December 16 and 17, 2021
Kristjanson, J.
[1] This case involves two appeals from five decisions of the Licence Appeal Tribunal (“LAT”). The primary issue on the first appeal is whether reconsideration of a decision by the same member is procedurally unfair. I find it is not and would dismiss the appeal.
[2] The primary issue on the second appeal is whether the LAT created a reasonable apprehension of bias or otherwise breached rules of procedural fairness in withdrawing a decision mistakenly assigned to and rendered by a member who had not heard the earlier oral evidence on the motion. Assigning a decision to a member who did not hear oral evidence was an error and would have been procedurally unfair. But the LAT withdrew the decision and reassigned the decision to the adjudicator who had heard the oral evidence, and who then rendered a decision. The appellant appeals from this decision, asserting that it was procedurally unfair and raises a reasonable apprehension of bias. I find there was no reasonable apprehension of bias nor breach of procedural fairness and would dismiss the second appeal.
Jurisdiction and Standard of Review
[3] The Licence Appeal Tribunal Act, 1999, S.O. 1999, c 12, Sch G (“LAT Act”), section 11(6) provides a right of appeal to the Divisional Court from a decision of the LAT relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 (“Insurance Act) but only on a question of law. The standard of review of that question of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. There is no appeal on questions of fact, or questions of mixed fact and law without an extricable question of law: Oliver v. Brant Mutual Insurance Company, 2018 ONSC 3716 (Div. Ct.) at para. 17.
[4] On issues of procedural fairness, the court must determine whether the appropriate level of procedural fairness was given in the circumstances.
The First Appeal: Reconsideration by the Same Member
Factual Background
[5] The appellant, Kierstan Warren, was injured in a motor vehicle accident in 2016. At the time, she was a self-employed real estate agent. The respondent, Aviva Insurance Company, is the appellant’s insurer for accident benefits.
[6] On August 1, 2018, Ms. Warren applied to the LAT under the Insurance Act and the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“SABS”), O. Reg. 34/10. She sought an Income Replacement Benefit (“IRB”), assessment and treatment benefits, and a “Special Award” under s. 10 of Automobile Insurance, R.R.O. 1990, Reg. 664, for unreasonable delay of insurance payments. The matter proceeded to a written hearing.
[7] On January 27, 2020, Adjudicator Robert Watt ordered Aviva to pay “a weekly IRB in the amount of $2,685.71” for two periods. He denied the other benefits and the Special Award: K.W. v. Aviva Insurance Canada, 2020 12709.
[8] Ms. Warren requested reconsideration. On July 20, 2020, Adjudicator Robert Watt, who rendered the original decision, reconsidered and affirmed his original decision: K.W. v Aviva General Insurance, 2020 51291. Adjudicator Watt dismissed the request for reconsideration, finding “that there was no issue of error of law or fact such that I would have reached a different decision. The applicant is re-arguing her position. The purpose of a reconsideration is not for re-arguing the same position.” The adjudicator clarified that the IRB benefit of $2,685.71 was not payable weekly but was the total sum over both periods. The appellant appealed the reconsideration decision — the first appeal in this court, in Court File No. 438/20.
Issues on First Appeal
[9] The primary issue is whether having an adjudicator reconsider his or her own decision violates the common law rules of natural justice and procedural fairness, including the rule against bias. I find that it does not, as set out below.
[10] The appellant also challenges the LAT's reconsideration process as a breach of her rights under s. 7 of the Charter of Rights and Freedoms. She argues that delays at the LAT and having the same adjudicator review his or her own decision has resulted in significant psychological impairments depriving her of her right to security of the person contrary to the Charter. The Divisional Court is an appellate court. The Charter argument was not raised below. A court may refuse to deal with an issue that could have been raised before the administrative decision-maker but is only raised for the first time on appeal or judicial review. The rationale for declining to hear a new argument includes respect for the legislative decision to confer initial decision-making authority on the administrative decision-maker, avoiding prejudice to the responding party, and ensuring that there is an adequate evidentiary record to decide the question: Alberta (Information and Privacy Commissioner) v. Alberta Teachers Federation, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 22-26. I decline to deal with the Charter issue since it was raised for this first time at this court, and requires an evidentiary record.
[11] On other issues raised, I find that Adjudicator Watt applied the correct legal test in coming to his decision about entitlement to benefits and he did not make any error of law. The determination of whether a Special Award is payable requires a finding of fact that the insurer acted unreasonably. There was no error of law in this determination. The adjudicator considered the arguments made by the appellant, made findings open to him on the evidence, and provided reasoned justification for his decisions.
Statutory Scheme
[12] Reconsideration is an internal tribunal review mechanism. When relief is not granted on reconsideration, claimants have a statutory right of appeal to the Divisional Court on a question of law alone.
[13] The dispute arises under the Insurance Act and the SABS, which establish the regulatory framework for Ontario's no-fault accident benefits regime. As the Supreme Court of Canada recognized, this system is “predicated upon the desire to provide accident benefits to all victims, regardless of fault, efficiently and expeditiously”: Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 at para. 22.
[14] The SABS dispute resolution system was significantly redesigned effective April 1, 2016. The Insurance Act was amended to provide the LAT with exclusive jurisdiction at first instance over the resolution of disputes about an insured person’s entitlement to or amount of statutory accident benefits: Insurance Act, section 280. The amendments streamlined the statutory accident benefit claim and payment process by, among other things, eliminating Financial Services Commission of Ontario mandatory mediations and the ability to bring court actions.
[15] The LAT’s Rules of Procedure provide that an adjudicator may hear reconsideration requests from his or her decisions, consistent with a fair, expeditious and efficient adjudicative process. Rule 18.1 of the LAT’s Rules of Procedure provides that: “The determination of the request for reconsideration shall be heard by written submissions and may be heard by the same Member whose decision is the subject of the request.”
[16] Rule 18.2 of the LAT’s Rules of Procedure provides that the Tribunal shall not make an order granting relief on reconsideration unless one or more of these 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.
[17] The LAT's Mission Statement at the time of the decisions, implemented under s. 3(1) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5 (“ATAGAA”), provided that the LAT aims to provide efficient, effective, and timely dispute resolution. This was recently replaced by Tribunals Ontario's cluster-wide Mandate and Mission Statement which similarly provides that the cluster “will deliver administrative justice in a fair, independent, effective and efficient manner.”
Analysis: No Denial of Procedural Fairness
[18] The appellant argues that she was denied procedural fairness when the adjudicator reconsidered his own decision. Procedural fairness requires that a decision be made free of a reasonable apprehension of bias by an impartial decision-maker. The legislative and administrative context is crucial to determining the required content of procedural fairness: Canada (Attorney General) v Mavi, 2011 SCC 30 at para 41. The regulatory scheme described above establishes structural and procedural mechanisms designed to allow the LAT to perform its adjudicative functions in a fair, efficient and expeditious manner. The LAT’s automobile benefits stream is high volume. In 2019-2020, the LAT received almost 15,000 automobile accident benefit appeals.
[19] This court has found that in the human rights regulatory context, it is not a breach of procedural fairness, and does not raise a reasonable apprehension of bias, where a tribunal member reconsiders his or her own decisions. In both Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at paras. 15-17 and Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 at paras. 90-99, this court dismissed challenges to the Human Rights Tribunal of Ontario's reconsideration process which, like the LAT's, also involves members reviewing their own decisions.
[20] In Decosse v. Miklos, 2019 ONSC 6034, this court similarly found that reconsideration by members of their own decisions at the Landlord and Tenant Board does not breach procedural fairness or raise a reasonable apprehension of bias, holding at paras. 25-26:
The LTB receives many thousands of applications each year and is required to adopt the most expeditious method of determining the questions arising in a proceeding that affords to all parties an adequate opportunity to know and address the issues being heard. To that end, s. 25.0.1 of the Statutory Powers Procedure Act gives the LTB the power to determine its own procedures and practices and to establish its rules.
Given the nature of a review, that there is a right of appeal from the LTB (albeit restricted to questions of law) and the LTB’s ability to establish rules to ensure that reviews are handled expeditiously, we see no breach of procedural fairness or natural justice in having an LTB Member review her own decision…
[21] The practice of members reconsidering their own decisions is a familiar feature in the administrative law landscape. Along with the Human Rights Tribunal of Ontario and the Landlord and Tenant Board, similar practices are followed by the Information and Privacy Commissioner of Ontario, the Ontario Labour Relations Board, the Workplace Safety Insurance Board, the Workplace Safety and Insurance Appeals Tribunal, the Financial Services Tribunal and Health Services Appeal and Review Board.
[22] Having members reconsider their own decisions contributes to the goal of efficiency and expeditiousness since the adjudicators know the file and are therefore best placed to assess the issues raised in a reconsideration request. Reconsideration under the LAT Rules is not a hearing de novo or an appeal: it is a corrective mechanism which allows an adjudicator to correct overriding errors or fundamental evidentiary concerns. I agree with Aston, J. in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at para. 16: “The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme.” This is consistent with Bagherian v. Aviva Insurance Company at para. 12.
[23] For these reasons, I would dismiss the first appeal.
Second Appeal: Withdrawal of Decision and Institutional Bias
[24] On the second appeal, the appellant argues that the decision by the LAT to withdraw a decision erroneously rendered by an adjudicator who had not heard the oral evidence breached procedural fairness and demonstrated institutional bias.
Factual Background
[25] Before Adjudicator Watt released his reconsideration decision which was the subject of the first appeal, Ms. Warren brought a motion seeking a compliance order that Aviva pay the IRB, and requesting another Special Award for delay of the IRB payment by Aviva. Adjudicator Ian Maedel dismissed the compliance order because he was satisfied that Aviva had tried to pay the IRB but the appellant had not received it. The issue of the Special Award was scheduled for a separate written hearing, but the appellant was first granted leave to cross-examine Aviva’s representative. LAT Vice Chair Avril Farlam presided over the cross-examination. There is no transcript of the cross-examination.
February 11, 2021 Decision
[26] LAT Vice Chair Farlam, who heard the oral evidence, did not render the decision. Rather, on February 11, 2021, the LAT released a decision by Adjudicator Robert Watt holding that Aviva was not liable to pay a Special Award because the decision and reconsideration decision had been stayed because of the first appeal to the Divisional Court. But Adjudicator Watt had not heard the cross-examination evidence and relied only on written submissions. That same day, appellant’s counsel sent an email to the LAT seeking guidance on how this matter should be handled as the decision was released by an adjudicator who did not hear the oral evidence. On February 23, a Case Management Officer at the LAT replied indicating she had sent the inquiry to a LAT Vice Chair.
The Withdrawal Order, February 24, 2021
[27] On February 24, 2021, Vice Chair Terry Hunter directed that the February 11 decision of Adjudicator Watt be withdrawn by the LAT and removed from the file. Vice Chair Hunter found:
Adjudicator Watt was erroneously scheduled for the written component of the hearing. That was clearly an error as he had not participated in the videoconference portion of the hearing.
The Special Award Reconsideration Decision, May 5, 2021
[28] On March 4, 2021, the appellant filed a request for reconsideration of the February 2021 decision. On May 3, the LAT’s Manager of Operations wrote asking whether the appellant would withdraw her reconsideration request since the February 2021 Decision had been withdrawn. The appellant questioned the Manager’s authority to deal with the matter and confirmed that she was not withdrawing her reconsideration request.
[29] On May 5, 2021, Associate Chair Stephen Jovanovic found that the appellant’s request for reconsideration was moot because the relief sought was effectively granted when the February 2021 decision was withdrawn. Associate Chair Jovanovic found that the primary relief requested on reconsideration was an order that Vice Chair Farlam render a decision based upon the oral evidence and written submissions. The effect of withdrawing the February 2021 decision erroneously assigned to Adjudicator Watt was to grant the remedy requested.
The Farlam Special Award Decision
[30] Vice Chair Farlam released a decision on June 14, 2021, denying the appellant’s request for a Special Award but granting interest on the IRB award.
[31] The Vice Chair considered the cross-examination evidence. She found that Aviva’s adjuster admitted that the IRB payment was sent out several times to the wrong address. The Vice Chair found that while this suggested a lack of competence or efficiency on the part of Aviva, it was not an unreasonable withholding or delay. The Vice Chair held that “the respondent's conduct does not rise to the level of unreasonableness contemplated by s. 10 of Regulation 664 and the case law.” The Vice Chair also found part of the delay was because the adjuster sought legal advice about whether payment was to be made in the face of a request for reconsideration, which she found to be reasonable.
[32] The appellant launched her second appeal to this court (Court File No. 747/21), from this decision.
Issues on Second Appeal
[33] The primary issue raised on the second appeal is whether the actions of the LAT raise a reasonable apprehension of bias or breached procedural fairness.
[34] The appellant submits that the LAT is biased because it was not transparent about its procedures in issuing the withdrawal order despite requests for information. The appellant argues that contrary to the ATAGAA, the LAT has not published a code of conduct for its members and not published public accountability documents as required. The appellant also cites statistics that show that the LAT finds for the Insurer 84% of the time. For IRB determinations, the appellant relies on statistics showing that the LAT finds for the insurer 75% of the time. The appellant argues that these statistics, and the lack of public accountability documents, create an apprehension of institutional bias in a reasonable person’s mind giving the appearance that the LAT favours insurers.
[35] The appellant also argues that the LAT violated the duty of procedural fairness by not explaining the administrative error and the process it followed to correct it in issuing the withdrawal order, and not following its own rules of practice which require submissions when issuing an order. The appellant argues that the LAT failed to disclose the procedure it relied on when issuing the different decisions.
[36] I do not accept these arguments. The LAT provided a reasoned explanation for the decision leading to the withdrawal order and cured the effect of the error. Indeed, the LAT recognized that it would have been an error to allow the decision rendered by the adjudicator who did not hear the oral evidence to stand. By withdrawing that decision and explaining the error, the LAT proceeded in a manner which was efficient, responsive, and proportional, and should have been a step that saved the parties time and money. The remedy—withdrawing the decision improperly rendered by an adjudicator who had not heard the oral evidence—was the remedy sought by the appellant. The appellant concedes the LAT remedied the deficiency.
[37] There is no evidence that assigning the decision to an adjudicator who did not hear the oral evidence resulted from institutional bias. I also find that the LAT has published a code of conduct for its members and other documents required by the ATAGAA.
[38] An administrative error corrected by the tribunal, which then afforded the requisite procedural fairness by ensuring that the adjudicator who heard the evidence rendered the decision, does not raise a reasonable apprehension of bias. This new hearing cured any procedural fairness breach, in a fair process which included having the adjudicator who heard the evidence render the decision. Adverse rulings, on their own, do not raise a reasonable apprehension of bias.
[39] The appellant seeks to argue for the first time on appeal that the LAT is institutionally biased toward insurers. The appellant did not raise the institutional bias claim before the Tribunal. The institutional bias argument should have been raised earlier, to allow the LAT and the insurer to address the issue on a complete factual record.
[40] Nor is there any probative evidence on the issue of institutional bias. The appellant relies on statistics to argue that the LAT lacks adjudicative independence. This court rejected an attempt to use statistics to show an apprehension of bias on an individual basis in Gilmor et al. v Nottawasaga Valley and The Township of Amaranth, 2015 ONSC 5327 at para. 79. Generally, without expert evidence, statistics alone cannot establish reasonable apprehension of bias: Zupko v. Canada (Citizenship and Immigration), 2010 FC 1319 at para. 22; see also Jaroslav v. Canada (Citizenship and Immigration), 2011 FC 634 at paras. 53-57 and Turoczi v. Canada (Citizenship and Immigration), 2012 FC 1423 at paras. 9-15.
[41] For these reasons, the second appeal is dismissed.
Order
[42] Each of the appeals is dismissed, without costs, in accordance with the agreement of the parties respecting costs.
Kristjanson J.
“I agree” ACJO McWatt
“I agree” Favreau J.
Released: June 24, 2022
CITATION: Warren v. Licence Appeal Tribunal, 2022 ONSC 3741
DIVISIONAL COURT FILE NOs.: 438/20 and 747/21
DATE: 20220624
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJO Watt, Kristjanson and Favreau JJ.
BETWEEN:
KIERSTAN WARREN
Appellant
– and –
LICENCE APPEAL TRIBUNAL and AVIVA INSURANCE COMPANY
Respondents
REASONS FOR DECISION
Released: June 24, 2022