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Administrative - Reconsideration (2)

. Warren v. Licence Appeal Tribunal

In Warren v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court considered whether a tribunal member reconsidering their own ruling was procedurally unfair (it wasn't):
[10] 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.

[11] 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…
[12] 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.

[13] 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.



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