COURT FILE NO.: 00-CV-192173CP
DATE: 20211117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMIE SMITH, ALANA DALTON, JAMIE McDONALD, and IRENE SALES INC., operating as THE HARTLEY HOUSE
Plaintiffs
– and –
THE CORPORATION OF THE MUNICIPALITY OF BROCKTON, THE BRUCE-GREY-OWEN SOUND HEALTH UNIT, STAN KOEBEL, THE WALKERTON PUBLIC UTILITIES COMMISSION, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
– and –
IAN D. WILSON ASSOCIATES LIMITED, DAVIDSON WELL DRILLING LIMITED, EARTH TECH (CANADA) INC., CONESTOGA-ROVERS & ASSOCIATES LIMITED, B.M. ROSS AND ASSOCIATES LIMITED, GAP ENVIROMICROBIAL SERVICES INC., A & L CANADA LABORATORIES EAST, INC., DAVID BIESENTHAL and CAROL BIESENTHAL
Third Parties
Milena Protich for Plan Counsel
Kevin Doyle, Self-Represented
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
Contents
A. Overview.. 2
B. Background. 3
C. Issues on Appeal 5
D. Standard of Review.. 6
E. Analysis and Discussion. 6
- Procedural Fairness. 6
(a) Did Mr. Doyle Receive Adequate Accommodation: The Teplitsky Arbitration?. 6
(b) Did Mr. Doyle Receive Adequate Accommodation: The Gomberg Arbitration?. 8
(c) Did Mr. Doyle Have Ineffective Assistance of Counsel?. 10
(d) Mental Competence to Instruct Counsel 11
(e) Self-representation. 12
(f) Was Mr. Doyle’s Arbitration Tainted by Bias?. 12
(g) Credibility Assessment and Other Findings of Fact 13
F. Conclusion. 14
A. Overview
[1] The Appellant, Kevin Doyle, appeals the arbitration decision dated November 7, 2018 of Frank K. Gomberg. Mr. Doyle was awarded $11,000.00 under the Walkerton Compensation Plan[^1] for loss of income from his farming business.
[2] Under the Plan, the Class Members of the Walkerton class action receive financial support and compensation for losses they suffered from the E. coli contamination of the Walkerton water supply between April 1, 2000 and December 5, 2000.
[3] Class Members submit their applications to the Plan Administrator. If the Administrator denies a claim, or if the Class Member rejects the Administrator’s compensation offer, the parties must attempt to resolve their dispute in mediation and/or arbitration.
[4] After an arbitration, an appeal lies to this Court, as stipulated in s. 3.3.2 of the Walkerton Settlement Agreement, which states:
If an Applicant proceeds to arbitration, arbitration will take place in accordance with rules set by the Judge. The rules shall include a provision permitting an appeal to the Judge from an arbitration award on a question of law, a question of fact, or a question of mixed fact and law.
[5] Mr. Doyle relies on s. 3.2.2 of the Walkerton Settlement Agreement to pursue his appeal. He asserts that Mr. Gomberg: (a) made numerous errors in his assessment of the facts; and (b) failed in numerous ways to ensure procedural fairness during the hearings.
[6] Mr. Doyle seeks a substituted award of $272,000 for the loss of farming income and $520,309 for the cost of his mitigation efforts.
[7] For the reasons that follow, I dismiss Mr. Doyle’s appeal.
B. Background
[8] The tragedy of the Walkerton E. coli outbreak is described in previous decisions in this class action[^2] and in the decision of Mr. Gomberg, and for present purposes it is not necessary to repeat the background facts.
[9] Mr. Doyle is a claimant under the Plan. While he was not ordinarily resident in the Town of Walkerton between April 1, 2000 and December 5, 2000, the Administrator accepts that he consumed contaminated water on or around May 24, 2000 and became ill.
[10] On May 27, 2001, after the Walkerton class action had settled, Mr. Doyle submitted a Stage I Application to receive compensation for his poor health for the two months between May 27 or 28, 2000 and July 30, 2000. In his Stage I Application, Mr. Doyle was represented by his lawyer, Patrick Kelly.
[11] Almost five years later, on March 3, 2006, Mr. Doyle followed up with a Stage II Application. He was again represented by Mr. Kelly. In this Stage II application, Mr. Doyle requested economic relief, specifically: (a) the loss of income from his farming business; (b) the costs associated with his loss mitigation efforts; (c) the loss of income and the loss of pension benefits from his early retirement from his job at Bruce Power; and (d) the costs associated with the premature sale of his farm.
[12] The Plan Administrator’s position was that Mr. Doyle had not suffered an economic loss as a consequence of the illnesses he had suffered as a result of the Walkerton water contamination. The Plan Administrator submitted that the economic losses suffered by Mr. Doyle, if they occurred at all, were attributable to Mr. Doyle’s personal injuries suffered as a result of drinking the contaminated water.
[13] With respect to his personal injuries, in June 2014, Mr. Doyle settled his Stage I Application for $12,000, plus pre-judgment interest. The award recognized that, due to his consumption of contaminated water, Mr. Doyle experienced cramps, diarrhea, and fever for approximately one month, and had intermittent recurrences of the symptoms for another month.
[14] However, the Administrator did not compensate Mr. Doyle for his extreme fatigue, stiff muscles and joints, or problems with concentration and organization “as there [was] no medical confirmation of a causal connection between those symptoms and the water contamination.” At the time, Mr. Doyle did not dispute these findings of the Administrator.
[15] Mr. Doyle sought arbitration with respect to his alleged economic losses.
[16] With respect to Mr. Doyle’s Stage II Application, the parties could not reach a resolution. An arbitration was scheduled to be heard before Martin Teplitsky, Q.C. in October of 2014.
[17] The arbitration began. At the arbitration hearing, Mr. Doyle was first represented by Mr. Kelly and then for a short period of time by lawyer Heikki Cox-Kikkajoon in February and March 2015 and thereafter by Stephen Osborne from July 2015 until the conclusion of the hearing.
[18] Mr. Doyle was self-represented at a few case management conferences, but he always had counsel at the arbitration hearings.
[19] At the arbitration, there were two main issues for Mr. Teplitsky to determine: (a) whether Mr. Doyle suffered the economic losses that he alleged; and (b) if so, whether the economic losses were a result of illness(es) related to the contaminated water.
[20] The arbitration proceeded intermittently over the next two years. The parties finished their evidence on June 30, 2016.
[21] Unfortunately, while the matter was adjourned for the parties to submit their written closing arguments, Mr. Teplitsky passed away on July 14, 2016.
[22] By order dated November 2, 2016, I appointed Mr. Gomberg to complete the arbitration based on the existing transcripts. I also empowered Mr. Gomberg with the discretion to recall witnesses and to hear viva voce evidence, as he deemed necessary. Mr. Gomberg did call for additional evidence.
[23] Mr. Gomberg ultimately allowed counsel for Mr. Doyle to file a supplementary affidavit from his client as well as an affidavit from a new witness, Bruce Davidson. On July 11-12, 2018, Mr. Doyle and Mr. Davidson were cross-examined and re-examined.
[24] On September 13, 2018, the parties made their closing arguments, and Mr. Gomberg concluded the arbitration.
[25] Mr. Gomberg issued his decision on November 7, 2018. He rejected the claim that Mr. Doyle’s total losses amounted to $1,599,433. Mr. Gomberg awarded Mr. Doyle $11,000 for income losses; i.e., $10,000 for the period between May and December 2000, and $1,000 for the period between January 1, 2001 and December 31, 2004.
[26] In reaching his decision, Mr. Gomberg’s made the following findings of fact:
• Between May 2000 and December 2000, Mr. Doyle suffered moderately from his consumption of the contaminated water. His illness minimally impacted his ability to run the farm in that seven-month period.
• From January 1, 2001 to December 31, 2004, Mr. Doyle’s symptoms were “trivial” and had insignificant impact on the farming operations.
• During the timeframe covered by his Stage II Application, Mr. Doyle had to deal with various illnesses and injuries caused by other events in his life, such as a car accident and the stressful process of earning a Ph.D.
• Although Mr. Doyle could prove that his consumption of the contaminated water and his consequent ailments led to some loss of farming income, he was unable to demonstrate a causal connection with his early retirement from Bruce Power and any losses associated with that retirement.
• Mr. Doyle’s claim for losses arising from what he believed to be the premature sale of his farm property was unsupported by the evidence and could not be sustained in law.
C. Issues on Appeal
[27] In his Notice of Appeal, delivered on September 19, 2020, Mr. Doyle advances multiple grounds of appeal; namely:
a. Mr. Doyle received inadequate accommodation as a party to the arbitration proceedings before both Mr. Teplitsky and Mr. Gomberg.
b. Mr. Gomberg committed “process errors” that undermined Mr. Doyle’s right to adequate representation; for example, it was a process error to refuse to release Mr. Doyle’s counsel as lawyer of record.
c. There are incomplete transcripts of the arbitration because important discussions were had and major decisions reached off-the-record and there were “ex parte” communications between counsel for the Plan and Mr. Gomberg when arbitration documents were transferred from Mr. Teplitsky’s office to Mr. Gomberg’s office.
d. Mr. Gomberg erred in law when he drew adverse inferences about Mr. Doyle’s credibility from Mr. Doyle’s failure to raise a “hue and cry.”
e. Mr. Gomberg “severely” misinterpreted the evidence. For instances:
i. He engaged in speculation, as opposed to inference.
ii. He made findings in the complete absence of evidence.
iii. He failed to understand the unique requirements of Mr. Doyle’s Ph.D.
iv. He failed to understand Mr. Doyle’s experience with IBS (Irritable Bowel Syndrome) and with fatigue.
v. He failed to understand “old accounting methods” that did not use computers.
vi. He failed to understand the stigma associated with IBS and fecal incontinence.
vii. He failed to understand the rationale behind the University of Toronto’s escort services.
[28] Both Mr. Doyle and Plan counsel have provided extensive written submissions in support of their positions on appeal. Based on their materials, the grounds of appeal can be encapsulated into two omnibus issues, which are:
a. Was Mr. Doyle denied procedural fairness by virtue of inadequate accommodation, ineffective assistance of counsel, and/or adjudicative bias?
b. Did Mr. Gomberg err in his assessment of Mr. Doyle’s credibility, or in his findings of fact?
D. Standard of Review
[29] Under the Plan, applications for compensation are considered by the Administrator. If the Administrator declines to make a compensation offer, or makes one that is unacceptable to the claimant, then the claimant may elect to have their entitlement re-assessed by an arbitrator appointed in accordance with the Plan. Any appeals of the arbitrator’s decision are determined by this Court.
[30] As noted in previous cases[^3], an appeal is not a new hearing, trial de novo, or re-hearing of the matter. An arbitrator’s findings must be afforded deference “unless there has been some error in principle [as] demonstrated by [their] reasons, some absence or excess of jurisdiction, or some patent misapprehension of the evidence."[^4]
[31] Mr. Doyle has not raised any concerns about jurisdiction. To be successful on his appeal, Mr. Doyle must establish that Mr. Gomberg erred in principle or that he palpably misapprehended the evidence.
[32] To succeed on the appeal, Mr. Doyle cannot re-argue the case in the hopes that this Court will make new factual findings and substitute its own opinion for that of Mr. Gomberg.
[33] In short, to succeed on appeal, Mr. Doyle must demonstrate a reviewable error by Mr. Gomberg.
E. Analysis and Discussion
1. Procedural Fairness
(a) Did Mr. Doyle Receive Adequate Accommodation: The Teplitsky Arbitration?
[34] Mr. Doyle submits that he did not receive adequate accommodations from Mr. Teplitsky or Mr. Gomberg as part of the arbitration process. He asserts that both arbitrators failed to account for the impact of his two strokes, which occurred in October 2014 and December 2015.
[35] Regarding Mr. Gomberg, Mr. Doyle also maintains that the arbitrator erred in his refusal to inquire further about Mr. Doyle’s disability and to have an independent medical evaluation conducted.
[36] Determining the merits of Mr. Doyle’s ground of appeal based on the arbitrator’s alleged failures to accommodate his physical conditions begins by noting that the nature of Mr. Doyle’s complaint is not that he was not accommodated. His grievance is that he submits that he was not adequately accommodated.
[37] In October 2014, at the start of the arbitration before Mr. Teplitsky, Mr. Doyle requested and received an accommodation that permitted him to testify for 30 minutes, followed by five-minute breaks, for a maximum half-day period. On this appeal, Mr. Doyle does not challenge the Teplitsky-granted accommodation. Rather, Mr. Doyle takes issue with Mr. Teplitsky’s decision in which the arbitrator refused to reverse the order of examinations so that Mr. Doyle could testify after his expert medical witnesses.
[38] Mr. Doyle submits he had medical evidence to demonstrate that the reversal of the order of witness testimony would have allowed him to better cope with his post-stroke stress levels. He claims that Mr. Teplitsky ignored that evidence and denied him this accommodation without reason.
[39] I disagree, Mr. Teplitsky did not err when he refused to accommodate Mr. Doyle with an order reversing the order of witnesses that had already been arranged.
[40] Mr. Doyle bore the burden of establishing the nature and extent of his disability, providing information about any limitations associated with his disability, and outlining the accommodation(s) needed for him to fully participate in the arbitration.[^5] Based on my review of the record, Mr. Doyle did not meet his onus of showing that the accommodations he received were insufficient, deficient, or not enough. Most to the point, he did not demonstrate how changing the order of witnesses would accommodate Mr. Doyle’s disabilities so that he could fairly present his case.
[41] Mr. Doyle relied on two medical letters to support his accommodation request.[^6] The first letter from Dr. Robert Nevin, dated March 15, 2016, is unhelpful. The letter, in its entirety, reads: “Due to medical reasons and to minimize stress, Kevin Doyle should testify at hearings after his doctors have testified.” Dr. Nevin does not specify that the “medical reasons” are Mr. Doyle’s two strokes nor does he specify how the ordering of witnesses might reduce Mr. Doyle’s stress. Dr. Nevin does not characterize the medical reasons as a disability, identify any limitations linked to the disability, or explain how his proposed accommodation would handle such limitations. Why the order of witnesses could or would make a difference to stress levels is not explained. Dr. Nevin simply refers to “stress” and states that an accommodation for reversed witness order must be made.
[42] The mere invocation of “stress” is insufficient to show that Mr. Doyle has a disability, and/or any consequent limitations, necessitating accommodation in his giving evidence or in the order of the presentation of witnesses at the arbitration hearing.[^7] Stress is inherent in the litigation process, and relying on stress simpliciter does not justify changing an already approved witness order or explain why there are medical reasons to change the order of witnesses. Why testifying after other witnesses would reduce stress is not explained and the doctor could just have easily said that Mr. Doyle needed to testify first to avoid the stress of waiting and watching other witnesses testify about his medical condition.
[43] There was a second letter from Dr. John Ostrander, dated March 25, 2016, that was filed with Mr. Teplitsky. This letter offered somewhat more detail on the status of Mr. Doyle’s health and seemed to express a rationale for the proposed accommodation. Dr. Ostrander opined that Mr. Doyle “may” suffer increased stress and blood pressure if he testifies at the arbitration, and the accommodation of a reversed witness order “may” reduce stress. Dr. Ostrander’s qualifier “may”, however, reduces the need for any accommodation and, once again, there is no scientific explanation as to why a change in the order of witness might reduce the stress that might occur.
[44] Overall, Dr. Ostrander’s letter reveals a lack of certainty about Mr. Doyle’s condition and how to reasonably accommodate him. When the letter is viewed in conjunction with Dr. Nevin’s scant note, the medical evidence makes obvious that any connection between Mr. Doyle’s limitations and the proposed accommodation was tenuous, at best.
[45] The purpose of an accommodation is to address a person’s needs, not their tactical and strategic preferences.[^8] Here, Mr. Teplitsky rejected Mr. Doyle’s accommodation request because there was no medical evidence to prove that reversal of the witness order was required for Mr. Doyle to fully participate in the arbitration, which was always going to be a stressful experience.
[46] Mr. Teplitsky made no error in reaching his conclusion based on the information before him. Mr. Doyle has not proven he was prejudiced procedurally or substantively by the order of the calling of witnesses to give evidence.
[47] I also note that Mr. Teplitsky did not overlook Mr. Doyle’s concerns. He was alert to the fact that Mr. Doyle needed accommodation. Mr. Doyle was permitted to present his evidence-in-chief by affidavit, subject to cross-examination and re-examination in-person. This reduced the amount of time that Mr. Doyle would spend on the stand and allowed the arbitration to proceed as planned. Mr. Teplitsky effectively balanced the interests of both parties.
[48] I do not find that Mr. Doyle faced any procedural unfairness as a result of Mr. Teplitsky’s decision about the order of evidence.
(b) Did Mr. Doyle Receive Adequate Accommodation: The Gomberg Arbitration?
[49] After Mr. Gomberg was appointed to continue the arbitration, he ruled that Mr. Doyle could file a supplementary affidavit and be cross-examined by Plan counsel. In February 2018, Mr. Doyle’s counsel, Stephen Osbourne, advised Mr. Gomberg that any future examinations of his client should not exceed 30 minutes per day. Mr. Osbourne provided three medical notes in support of Mr. Doyle’s requested accommodation.
[50] Mr. Gomberg agreed to hear submissions on the matter, and after hearing the submission, Mr. Gomberg decided that the 30-minute per day accommodation was not necessary for a fair hearing of Mr. Doyle’s arbitration.
[51] On July 11, 2018, the first day of Mr. Doyle’s cross-examination, Mr. Osbourne tried to renew the same submissions and adduce new medical evidence. Mr. Gomberg dismissed Mr. Osbourne’s attempts and conducted the arbitration under the Teplitsky accommodation – i.e., a five-minute break for every 30-minute block of testimony, up to four hours per day.
[52] Mr. Doyle asserts that Mr. Gomberg’s imposition of the Teplitsky accommodation was inadequate for the July 2018 cross-examination because his health had deteriorated in the aftermath of his two strokes. He claims that he produced abundant medical evidence to warrant the new accommodation, and that if Mr. Gomberg had any residual uncertainty, he should have ordered an independent medical assessment. Mr. Doyle insists that Mr. Gomberg’s failure to inquire into his disability led to an unfair arbitration, since he was not able to understand or fully participate in the proceedings.
[53] Mr. Gomberg explained his reasons for continuing the Teplitsky accommodation in his decision, dated March 22, 2018. He found that none of the three letters, from Dr. Nevin (August 18, 2016), Mr. Hill (September 16, 2016), and/or Dr. Ostrander (October 5, 2016),[^9] set out the risk(s) to Mr. Doyle’s health should his cross-examination take place in accordance with the Teplitsky accommodation. The medical notes did not describe why “30 minutes per day” was the most appropriate option for accommodating Mr. Doyle’s professed limitations.
[54] In my opinion, these conclusions were reasonably available to Mr. Gomberg on the totality of the evidence and he made no error in reaching this decision.
[55] Mr. Gomberg also observed that while the letters were dated two years prior, Mr. Doyle had not disclosed their existence or made his limitations known earlier. Mr. Gomberg noted that Mr. Doyle had the chance to tell this Court about his need for additional accommodations on October 24, 2016, when he contested Mr. Gomberg’s appointment and requested a new arbitration. Mr. Gomberg noted that rather than waiting until 2018, Mr. Doyle could have broached the matter of additional accommodations with Mr. Gomberg at his April 2017 motion to discharge counsel. He did the opposite and indicated to Mr. Gomberg that he had the requisite capacity to represent himself at the arbitration moving forward.
[56] Mr. Gomberg properly considered all of these surrounding circumstances in his decision to reject the 30-minute per day accommodation. I see no error that merits this Court’s intervention on appeal.
[57] With respect to whether Mr. Gomberg erred in his subsequent refusal to re-consider the accommodation request at the July 2018 hearing, the additional documentation is in itself dispositive that he made no error. Dr. Nevin’s letter, dated May 16, 2018, states for the first time, that Mr. Doyle’s medical condition had declined over the previous year. Dr. Nevin lists a constellation of symptoms that Mr. Doyle appears to have been suffering from in the aftermath of his two strokes. He then seems to rely on the worsening of these symptoms to justify his recommendation for the 30-minute per day accommodation. Inexplicably, however, Dr. Nevin fails to attach any clinical notes from the May 2017 to May 2018 timeframe. The notes were within Mr. Doyle’s power to produce and were essential for him to meet his onus under the collaborative accommodation process. In their absence, Mr. Gomberg had no way to assess whether the deterioration of Mr. Doyle’s symptoms led to a change in his limitations, and if so, whether these new limitations warranted the 30-minute per day accommodation.
[58] Even if Mr. Gomberg had ordered an independent medical evaluation as Mr. Doyle submits he ought to have done, Mr. Gomberg would not have acquired any useful evidence. The question before Mr. Gomberg was not whether Mr. Doyle had a disability that called for accommodation. The question was whether the limitations caused by Mr. Doyle’s disability required a change to his accommodations, in either February or July of 2018, so that he would only testify 30 minutes per day.
[59] To answer the question, Mr. Gomberg had to understand a sudden shift in Mr. Doyle’s health, since as late as April 2017, Mr. Doyle indicated that he possessed the physical and mental capacity to represent himself at the arbitration. An independent medical evaluation would not have tracked the trajectory of Mr. Doyle’s health, just offered a snapshot of his condition at a specific point in time. It would not have helped Mr. Gomberg in his determination of whether the 30-minute per day accommodation was the most appropriate in the circumstances.
[60] Judicial notice of stroke patients’ symptoms would similarly have not been of assistance. Strokes impact patients differently. Although there may be common experiences amongst them, the long-term effects of a stroke and its associated limitations depend on a variety of factors unique to the individual. Mr. Gomberg thus could not have taken judicial notice of post-stroke symptomology. Even if he did, the information gleaned therefrom would not have been beneficial to his analysis of Mr. Doyle’s request for the 30-minute per day accommodation.
[61] Mr. Gomberg fulfilled his duty to accommodate Mr. Doyle. He provided Mr. Doyle with a meaningful opportunity to identify his disability and request an accommodation. On the basis of Mr. Doyle’s evidence, he concluded that the 30-minute per day accommodation was unnecessary, and that the Teplitsky accommodation would adequately respond to any limitations.
[62] I find that Mr. Gomberg did not err in principle or misapprehend the evidence when he decided to conduct Mr. Doyle’s cross-examination with the Teplitsky accommodation. Despite Mr. Doyle’s submissions to the contrary, the Teplitsky accommodation was more than sufficient for him to understand and participate in the proceedings.
(c) Did Mr. Doyle Have Ineffective Assistance of Counsel?
[63] Mr. Doyle’s concerns about his legal representation at the arbitration are three-fold: (1) that near the end of his retainer with Mr. Osbourne, he received ineffective assistance of counsel; (2) that for the duration of his retainer with Mr. Osbourne, Mr. Doyle was incompetent to instruct counsel; and (3) that over his periods of self-representation, Mr. Doyle was not treated in accordance with the standards set out by the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons.
[64] Mr. Doyle argues that as a result of these issues, he did not have a procedurally fair arbitration, particularly before Mr. Gomberg.
[65] It is very doubtful that Mr. Doyle has demonstrated any ineffective assistance of counsel, but for the purposes of this appeal, I will assume that the case could be made out from an evidentiary perspective and consider the scope and operation of ineffective legal assistance as a basis to set aside an adjudicator’s decision.
[66] Allegations of ineffective legal assistance are not typically pursued on an appeal of civil proceedings. This is because the remedy for such a claim is a new trial or a new hearing. As Justice Catzman explains in D.W. v. White,[^10] unsuccessful litigants usually prefer to explore the myriad of other options that they can use to recover their losses. Foremost among them would be the “party’s right to bring an action against the counsel whose conduct he impugns."[^11]
[67] Justice Catzman did not rule out the possibility that allegations of ineffective counsel could constitute a ground of appeal. However, he stated that its availability should be restricted to the "rarest of cases."[^12] He outlined some examples, such as cases with a public interest element or those involving vulnerable individuals, where he believed an appeal based on ineffective legal assistance would be allowed.
[68] I have considered Mr. Doyle’s written submissions and reviewed the record. I find that Mr. Doyle’s appeal is not an appropriate context to put forward an ineffective assistance of counsel claim for two reasons.
[69] First, Mr. Doyle clearly indicates that if he were to win his appeal, he does not seek to have a new arbitration. That is, Mr. Doyle does not want the precise form of relief that was meant to address the procedural unfairness caused by an ineffective assistance of counsel.
[70] Second, even if Mr. Doyle was amenable to the remedy of a rehearing, his appeal cannot be classified as one of the “rarest cases” in which ineffective assistance of counsel warrants an arbitration de novo. The Walkerton class action may have been a matter of public interest and importance, but the applications commenced by the victims under the Plan are not. The assessment of applications are intended to protect the privacy of each individual, and to turn on the specific facts as they are pled.
[71] Mr. Doyle could be viewed as a “vulnerable” person because of his disability. However, the Walkerton class action, by its very nature, dealt with victims who had varying degrees of incapacity. The Settlement Agreement, the Plan, and subsequent directions from this Court imposed safeguards that would ensure the fair assessment of applications.
[72] Mr. Doyle’s appeal is ultimately not one of the “rarest cases” where a new arbitration should be ordered due to the ineffective assistance of counsel and as I already said, it is a contentious matter whether Mr. Doyle did not have adequate representation.
[73] I dismiss this ground of appeal.
(d) Mental Competence to Instruct Counsel
[74] Mr. Doyle asserts that he did not possess the requisite mental capacity to properly instruct his different lawyers in lead-up to, and at the arbitration. I disagree.
[75] The issue of Mr. Doyle’s mental capacity was first raised by his former lawyer, Pat Kelly, in 2011. At the time, Mr. Doyle was assessed by a psychiatrist who determined that he could competently take an oath, act as a witness, and interact with counsel. Neither Mr. Kelly nor the three lawyers who succeeded him made any further requests to assess Mr. Doyle’s competency. An application for a litigation guardian was never made.
[76] In fact, on April 25, 2017, Mr. Doyle commenced a motion before Mr. Gomberg because he wanted to remove Mr. Osbourne as counsel and represent himself at the arbitration. Mr. Gomberg dismissed the motion, but he did not find then or thereafter that Mr. Doyle lacked the mental capacity to instruct counsel.
[77] I note that I also considered a preliminary motion on this appeal as recently as September 11, 2019, followed by a number of requests for further direction. I found that in each instance, Mr. Doyle was quite capable of representing himself. There never has been a suggestion that he needed a litigation guardian. I do not believe that there is any reason to doubt Mr. Doyle’s competency during the various phases of his dispute with the Administrator.
(e) Self-representation
[78] Mr. Doyle did not represent himself at any point in the parties’ dispute that was material to the underlying issues. As Plan counsel correctly observes in her submissions, he was represented for the entire duration of the arbitration, which is the subject-matter of the appeal before me. Thus, there is no merit to his complaint that over his periods of self-representation, he was not treated in accordance with the standards set out by the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons.
(f) Was Mr. Doyle’s Arbitration Tainted by Bias?
[79] While Mr. Doyle admits the difficulty of an objection based on reasonable apprehension of bias, he nonetheless insists that his appeal should be allowed because Mr. Gomberg’s conduct at the arbitration, coupled with his comments in the decision, reveals a partiality towards Plan counsel.
[80] Mr. Doyle identifies the following examples to support his ground of appeal based on a reasonable apprehension of bias: (1) the refusal to share documents with him or his counsel before they were moved from Mr. Teplitsky’s office to Mr. Gomberg’s office; (2) the ex parte communications between Mr. Gomberg and Plan counsel on July 11 and 12, 2018; (3) the off-the-record sessions held at the arbitration; (4) the “complimentary” remarks made by Plan counsel and Mr. Gomberg during the parties’ closing submissions; and (5) the “judgmental” language employed by Mr. Gomberg throughout his decision.
[81] I accept Plan counsel’s position that Mr. Doyle should have raised, at the least, issues (1) to (4) with Mr. Gomberg. Sections 13(1) and 13(3) of the Arbitration Act, 1991,[^13] state that a party who wishes to claim reasonable apprehension of bias must notify the arbitrator within 15 days of learning about the grounds for the challenge. Mr. Doyle knew of issues (1) to (4) before the arbitration ended. He cannot now for the first time on appeal argue a reasonable apprehension of bias.
[82] In relation to all the issues, Mr. Doyle is correct to recognize the onerous burden on him to prove a reasonable apprehension of bias. The test for a reasonable apprehension of bias was articulated by de Grandpré J. in his dissent of Committee for Justice and Liberty et al. v. National Energy Board,[^14] and has since been affirmed by the Supreme Court of Canada.[^15] The test is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would consider it more likely than not that the decision-maker consciously or unconsciously rendered their decision unfairly.
[83] I canvassed the relevant law on reasonable apprehension of bias in Smith v. Brockton (Municipality),[^16] and I incorporate that discussion by reference. Suffice to say that, the test is not whether Mr. Doyle would reasonably apprehend bias, but whether a hypothetical member of the public would do so. This determination is based on an objective, fact-specific inquiry.
[84] A reasonable person, who reads Mr. Gomberg’s reasons and the transcript of the proceedings would not conclude that he was biased and decided Mr. Doyle’s claim unfairly. Mr. Gomberg may have invoked florid language to articulate some of his factual findings but there is no basis to apprehend bias.
[85] Mr. Doyle’s fixation on Mr. Gomberg’s use of the phrase, “defies common sense,” does not persuade me otherwise. The case Mr. Doyle refers to and relies upon, Hazelton Lanes Inc. v. 1707590 Ontario Limited,[^17] is distinguishable. There, the Court of Appeal for Ontario found that a trial judge who repeatedly interrupted the cross-examination of a witness with similar asides displayed reasonable apprehension of bias. The trial judge’s behaviour to the litigant was dismissive and rude in nature, and as a result, the fairness of the proceeding was compromised. The same cannot be said here.
[86] I accordingly reject Mr. Doyle’s ground of appeal based on a reasonable apprehension of bias.
(g) Credibility Assessment and Other Findings of Fact
[87] Mr. Doyle contends that Mr. Gomberg erred in the assessment of his credibility by: (1) drawing adverse inferences from his failure to raise a “hue and cry” about his health; and (2) coming into the arbitration with preconceived ideas about certain “life experiences.”
[88] Mr. Doyle also asserts that Mr. Gomberg ignored and/or misapprehended the evidence, which led to flawed findings of fact on many issues, such as: (a) the requirements for Mr. Doyle’s PhD; (b) the financial situation at Mr. Doyle’s farm; (c) the nature of Mr. Doyle’s work with Bruce Power; (d) Mr. Doyle’s use of the University of Toronto’s escort services; and (e) Mr. Doyle’s diagnoses for fecal incontinence and IBS.
[89] The factual findings in this case flowed largely from Mr. Gomberg’s assessment of Mr. Doyle’s credibility. Issues of fact, and issues of mixed fact and law, attract deference on appeal, including issues of fact associated with a witness’ credibility because the adjudicator has first hand and direct opportunities to hear and see the witness. Findings of fact grounded in credibility assessments are difficult to disturb. On an appeal, Mr. Doyle must demonstrate a palpable and overriding error in order for this Court to interfere and set aside findings of fact.
[90] Mr. Doyle has not met the onus of proving a palpable and overriding error of fact. Mr. Gomberg may not have presided over the entire arbitration, but he did have an opportunity to see Mr. Doyle testify, and to formulate his own opinions about Mr. Doyle’s credibility and reliability.
[91] In addition, Mr. Gomberg had the benefit of an extensive written record that included transcripts, medical reports, correspondence between the parties, and documents from Mr. Doyle’s studies at the University of Toronto as well as his employment at Bruce Power. Mr. Gomberg evaluated all of the evidence with a common-sense approach that focused on its logic and plausibility. He ultimately rendered the decision that Mr. Doyle only suffered minimal farming losses in the amount of $11,000.
[92] Despite Mr. Doyle’s efforts, the role of this Court is not to re-try his case. I find that Mr. Gomberg’s conclusions were reasonable and Mr. Doyle’s grounds of appeal based on errors of fact or errors of mixed fact and law are without merit.
F. Conclusion
[93] Mr. Doyle’s appeal is dismissed.
Perell, J.
Released: November 17, 2021.
COURT FILE NO.: 00-CV-192173CP
DATE: 20211117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMIE SMITH, ALANA DALTON, JAMIE McDONALD, and IRENE SALES INC., operating as THE HARTLEY HOUSE
Plaintiffs
– and –
THE CORPORATION OF THE MUNICIPALITY OF BROCKTON, THE BRUCE-GREY-OWEN SOUND HEALTH UNIT, STAN KOEBEL, THE WALKERTON PUBLIC UTILITIES COMMISSION, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
– and –
IAN D. WILSON ASSOCIATES LIMITED, DAVIDSON WELL DRILLING LIMITED, EARTH TECH (CANADA) INC., CONESTOGA-ROVERS & ASSOCIATES LIMITED, B.M. ROSS AND ASSOCIATES LIMITED, GAP ENVIROMICROBIAL SERVICES INC., A & L CANADA LABORATORIES EAST, INC., DAVID BIESENTHAL and CAROL BIESENTHAL
Third Parties
REASONS FOR DECISION
PERELL J.
Released: November 17, 2021
[^1]: The Plan is part of the settlement reached between the Province of Ontario and the victims of the Walkerton E. coli outbreak in the Walkerton class action. The Plan provides compensation to class members and sets out the process by which individual claims for compensation are evaluated. The Plan states that the Province of Ontario funds all associated costs.
[^2]: See Smith v. Brockton (Municipality), 2016 ONSC 6781; Smith v. Brockton (Municipality), 2019 ONSC 5275.
[^3]: Previous appeal decisions can be found at <http://walkertoncompensationplan.ca/appeal_decisions.html>.
[^4]: S.P. (the Appellant) and The Administrator (March 2, 2005), online: ONSC <http://walkertoncompensationplan.ca/_0122140524_001.pdf>, citing Jordan v. McKenzie (1987), 26 C.P.C. (2d) 193 (Ont. H.C.),lii, aff’d (1989), 39 C.P.C (2d) 217 (Ont. C.A.).
[^5]: Ontario Human Rights Commission, Policy on ableism and discrimination based on disability (Toronto: Ontario Human Rights Commission, 2016) at p. 45.
[^6]: Appeal Record of Plan Administrator, page 4999
[^7]: Ontario Human Rights Commission, Policy on ableism and discrimination based on disability (Toronto: Ontario Human Rights Commission, 2016) at p. 47, footnote 5, citing Simcoe Condominium Corporation No. 89 v. Dominelli, 2015 ONSC 3661.
[^8]: Graham v. Underground Miata Network, 2013 HRTO 1457, at para. 31. See also Broker v. SCOPE Clinic, 2016 HRTO 247, at para. 19.
[^9]: Appeal Record of Plan Administrator starting at page 6279
[^10]: 2004 22543 (ON CA), [2004] O.J. No. 3441 (C.A.).
[^11]: D.W., at para. 51.
[^12]: Ibid, at para. 55.
[^13]: S.O. 1991, c. 17.
[^14]: 1976 2 (SCC), [1978] 1 S.C.R. 369.
[^15]: See, for example, R. v. Valente, 1985 25 (SCC), [1985] 2 S.C.R. 673 and R. v. S.(R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484.
[^16]: 2016 ONSC 6781.
[^17]: 2014 ONCA 793.