Background facts:
The appellant was injured in a motor vehicle accident. The respondent is the appellant’s’ insurer for accident benefits. The appellant applied to the LAT under the Insurance Act seeking Income Replacement Benefits, the cost of medical assessments, funding of medical treatment, and a “Special Award” for an unreasonable delay of payments.
At the LAT hearing, Adjudicator Robert Watt, ordered Aviva to pay “a weekly IRB in the amount of $2,685.71” for two periods, and he denied the other benefits and Special Award.
The appellant requested reconsideration for this decision. Adjudicator Watt, who rendered the original decision, reconsidered and affirmed his original decision. The appellant appealed this reconsideration decision to the Divisional Court.
First issue on appeal:
Does having an adjudicator reconsider his or her own decision violate the common law rules of procedural fairness and the rule against bias? Writing for the three judge panel which included Associate Chief Justice McWatt and Justice Favreau, Justice Kristjanson found that it does not and dismissed the appeal.
In her decision, Justice Kristjanson relies on both Landau v Ontario (Minister of Finance) and Taucar v Human Rights Tribunal of Ontario to demonstrate that “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.”
The LAT’s mission statement is: “will deliver administrative justice in a fair, independent, effective and efficient manner.” Given that the LAT has to consider thousands of applications each year, “having members reconsider their own decisions contributes to the goal of efficiency and expeditiousness.”
The appellant also took issue with another action the LAT took. The case involved the hearing of live evidence before an adjudicator, followed by written submissions. For whatever reason, the LAT assigned the writing of the decision to an adjudicator other than the one who heard the oral evidence, and there was an objection taken by the appellant when the decision was released by that other adjudicator, against their position. Upon being alerted to this problem, the LAT withdrew the decision, and re-assigned the hearing to the adjudicator who heard the live evidence. The decision ended up being similarly against the Applicant’s position. The Applicant argued that withdrawing a decision mistakenly assigned to and heard by an ajudicator created an unreasonable apprehension of bias and breached the rules of procedural fairness.
Justice Kristjanson explains that “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, “ and “by withdrawing that decision and explaining the error, the LAT proceeded in a manner which was efficient, responsive, and proportional.” This administrative error – which was corrected by the tribunal – accords with the rules of procedural fairness and does not raise a reasonable apprehension of bias.
The appeal was therefore dismissed.
Julia Cohen is a summer student at ZTGH and author of this blog. If you have a question about this blog or a similar decision, please contact Julia at 416-777-2811 ext. 5296 or Eric Grossman at 416.777.5222.
