Recently, the Ontario Divisional Court released its decision Economical Insurance Co. v. Abou-Gabal, 2026 ONSC 42 which canvasses the doctrine of reasonable apprehension of bias and its application to the conduct of adjudicators at the Licence Appeal Tribunal (LAT). On appeal, the Court held that the conduct of the LAT adjudicator who made the underlying decision met the test for a reasonable apprehension of bias. In doing so, the court re-emphasized the importance of the principle that adjudicators be free from both actual bias and perceived bias.
The Facts
The underlying dispute involved the Respondent and the Appellant insurer. When the Respondent was 14, she was diagnosed with severe autism spectrum disorder. She relied on family for assistance with basic activities of daily living, and she was removed from public school at a young age due to major difficulties.
At 17 years old, the Respondent and her brother were riding a bicycle when they ran into a stopped vehicle in a parking lot, and the Respondent was thrown from the bicycle (“the accident”). As a result, the Respondent alleged that she sustained injuries and applied to the Appellant insurer for a designation of catastrophic impairment, pursuant to section 3.1 of the Statutory Accident Benefits Schedule. The Respondent also claimed entitlement to attendant care benefits, among a number of other treatment plans.
At the LAT, the Adjudicator found that, although the Respondent had autism prior to the accident, her symptoms had worsened because of the accident. The Adjudicator further found that the Respondent was catastrophically impaired due to the accident, and entitled to attendant care benefits in the amount of $1,920.67 per month.
The Appellant sought reconsideration of this decision at the LAT on the basis that there was a reasonable apprehension of bias on the part of the Adjudicator, who was also deeply involved in advocacy for people with autism. The LAT dismissed the request, holding that the Appellant could have raised the issue of bias sooner and that regardless, the presumption of impartiality had not been rebutted.
Appeal to the Divisional Court
Before the Divisional Court, the Appellant argued that the LAT Adjudicator’s background and continued advocacy for people with autism constituted a reasonable apprehension of bias and therefore, the case should be reheard. Notably, the Appellant did not claim actual bias.
Upon reviewing the Adjudicator’s history, the court noted several important facts, highlighting the Adjudicator’s extensive involvement in and passion for advocacy for individuals with autism. To list a few, the Adjudicator:
- served as a Member of Provincial Parliament and is quoted as stating that they ran for office to ensure children with special needs are better supported;
- wrote a number of articles advocating for increased support for caregivers of those with autism, including after his appointment to the LAT; and
- has a younger brother with autism and has publicly discussed his family’s difficulties in obtaining adequate care for the brother.
Reasonable Apprehension of Bias
In its decision, the Divisional Court explained that the threshold for establishing a reasonable apprehension of bias (RAB) is high, with the burden of proof resting with the party claiming its existence. Further, the inquiry is context-specific, each case being examined within its specific factual matrix.
Relying on the Supreme Court of Canada’s decision Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), the Divisional Court explained that the test for whether an RAB exists depends on the application of the following:
“[W]hat would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
Importantly, the test does not require a finding of actual bias. As the Divisional Court wrote, public confidence in the legal system depends on the fundamental belief that those engaged in judicial and adjudicative decision-making “always do so without bias or prejudice and must be perceived to do so [emphasis added].” As such, the perception of bias alone may suffice to satisfy the test for a RAB.
Given the facts of this case and applicable law, the Divisional Court held that the Adjudicator’s extensive involvement with and advocacy for individuals with autism meant that “[…] a reasonably informed person, viewing the matter realistically and practically would conclude that the adjudicator, whether consciously or unconsciously, would not decide the matter fairly.” As such, the Court set aside the Adjudicator’s decision and ordered a new hearing.
In coming to this conclusion, the Court acknowledged that judges and adjudicators come from a variety of backgrounds. However, once these decision-makers are appointed, they must divorce themselves from their past and dedicate themselves to their new roles. On this point, the Court noted the Adjudicator’s continued involvement after his appointment to the LAT.
Delayed RAB Allegations
In response to the Appellant’s delay in raising the issue of a RAB, the Divisional Court explained that, while a party is not permitted to sit on information substantiating a RAB and wait to decide whether to raise the issue, the fact that this information was available prior to the hearing is not determinative of the issue. There was no evidence that the Appellant was aware of the Adjudicator’s history before the hearing, such that the Court could not conclude that the Appellant delayed raising the issue to obtain a strategic benefit. Further, parties are not expected to dive into the history of an adjudicator prior to a hearing and therefore, the delay in this instance did not negate the Court’s finding of a RAB in this case.
Conclusion
Regardless of the public value of the Adjudicator’s prior and ongoing advocacy work, the Divisional Court has made it clear that adjudicators must be free from actual bias as well as its appearance. If a decision is tainted by actual bias or the appearance of bias, it must be remitted for a new hearing to ensure that justice is served.
Daniel Hinds is an articling student at ZTGH and the author of this blog. If you have any questions about this blog, please contact Daniel by email at [email protected].
