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Administrative - Reconsideration - Done By Same Member. Danso v. The Human Rights Tribunal of Ontario et al.
In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court considers the common (although equally commonly unsatisfied) complaint that an administrative reconsideration should be heard by a different member than the original hearing, here in an HRTO context:[79] ... Additionally, the Applicant submits that his Reconsideration Application was decided by another Adjudicator (M. Borer) because the Tribunal knew Adjudicator Tamburro was biased.
[80] There is no requirement in Rule 26 of the Code that mandates or directs that any Reconsideration Application must be heard by the same Adjudicator.
[81] The Rule only speaks to the “The Tribunal” considering a Reconsideration Application. . Wu v. City of Toronto and Toronto Ombudsman
In Wu v. City of Toronto and Toronto Ombudsman (Div Court, 2023) the Divisional Court considers (and dismisses) two merged JR applications against several 'summary dismissal' HRTO decisions. In these quotes the court cites authority for the tribunal practice of allowing the same member to decide both the primary and reconsideration hearings:[44] In the apparent absence of convincing evidence of or basis for any reasonable apprehension of bias, Wu’s mere suspicions and his dissatisfaction with the decisions are not sufficient to discharge the heavy burden for demonstrating any reasonable apprehension of bias. The fairly common practice of reconsideration of a decision by the same Adjudicator does not in itself establish bias (see: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926). ... . Sahadeo v Pafco Insurance Company
In Sahadeo v Pafco Insurance Company (Div Court, 2023) the Divisional Court justified a reconsideration, made by the same member who issued the original decision (and which added additional reasons, and thus undermined the appellant's LAT 'question of law' issue), as being within the SPPA s.21.2 ['review'] tribunal authority, under SPPA s.25.1:[12] The essence of the Appellant’s argument is that the LAT overstepped the bounds of what it is entitled to do in a reconsideration decision, thereby causing an unfairness to the Appellant. As put by the Appellant’s counsel in oral submissions, the unfairness consisted of using the reconsideration decision to deprive the Appellant of an appeal on a question of law by reviewing the facts again in light of the correct legal principles, thereby leaving the Appellant with, at best, an appeal on a question of mixed fact and law. As acknowledged by the Appellant, the Divisional Court has no jurisdiction to deal with appeals on questions of mixed fact and law.
[13] Section 21.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, gives a tribunal the power to make rules giving it the power to reconsider its own decision. Rule 18.1 of the LAT’s Common Rules of Practice and Procedure provides that the LAT may reconsider “any decision of the Tribunal that finally disposes of an appeal.” Further, a request for reconsideration may be heard by the same member whose decision is the subject of the request (see: Gore v. Rusk, 2022 ONSC 2893 (Div. Ct.) at para, 49), or by another member of the LAT.
[14] One of the bases for requesting reconsideration of a decision is that “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”: Rule 18.2 (b). After considering the request for reconsideration the LAT may dismiss the request, confirm, vary or cancel its original decision or order, or order a rehearing on all or any part of the matter: Rule 18.4.
[15] In order to grant a reconsideration request on the basis of Rule 18.2(b), the LAT must be satisfied both that there was an error of law in the original decision and that it would have likely reached a different result had the error not been made. In the reconsideration decision at issue in this case, the LAT asked itself whether it made any errors of law in the original decision, and then asked whether, if it did, that error have changed the result. In order to answer the second question, the LAT reviewed the evidence again with a view to focusing on the alleged error that the Appellant said it had made the first time. Having done so, it found that even if it had erred in the original decision (something it did not concede), the error would not have changed the result. This approach was a logical and necessary one for the LAT to take given the ground upon which the reconsideration request was made. In other words, what the LAT did in its reconsideration decision is contemplated by the Rules regarding reconsideration.
[16] The same is true of the result reached by the LAT. If it concluded that the error alleged would not have changed the result (even if was made), then the LAT had the jurisdiction to dismiss the request for reconsideration and confirm the original decision. This is what the LAT did in the impugned decision, and it is a result that logically flows from its findings in that decision.
[17] In other words, rather than acting outside its jurisdiction under the Rules governing reconsideration, the LAT acted entirely within that jurisdiction. Those rules contemplate that the LAT can reconsider the evidence in light of the legal errors it is alleged to have made in the original decision and still come to the same decision. One inevitable result of the Rules is that a party may be deprived of an appeal based on an error of law that it would have had if the reconsideration process did not exist. This is not an unfairness; it is a legislative choice designed to reinforce the fact that the Court’s role in making decisions concerning entitlement under the Statutory Accident Benefits Schedule is a limited one.
[18] The Appellant referred us to the Divisional Court’s decision in Fordjour v. Royal and Sun Alliance Ins. of Canada, 2019 ONSC 6268, to support its arguments. In that case, the Divisional Court found that the adjudicator did not assess the causation issue properly. On reconsideration the LAT found that the causation analysis was “implied”. The Divisional Court found that this conclusion was unreasonable because crucial findings of fact were not made on the causation issue. In the case at bar, the LAT in its reconsideration decision did more than just assert that the effects of the diagnosed pain disorder on impairment was considered in its original decision. It went on to review the evidence again on that issue and to make “crucial” findings of fact on that issue. It also explained why it did not find the Appellant’s main expert’s report helpful and it explained why it did not find it necessary to set out the specific diagnoses in its original decision. Having done so, the Divisional Court was not left with the same concern as it had in the Fordjour case. The LAT’s reasoning on all the issues of concern was not implied, it was express. Further, where crucial findings of fact were necessary to determine the issues, the LAT made them. . Sahadeo v Pafco Insurance Company
In Sahadeo v Pafco Insurance Company (Div Court, 2023) the Divisional Court canvassed the substance of a LAT SABS reconsideration (which was made by the same tribunal member, and which added reasons for decision), that showed them actively defending - and then deciding - their own case. This case reveals the true nature of a reconsideration (particularly when not done by a different tribunal member), as it being wholly distinct from an appellate assessment of 'correctness', or even of a judicial review of 'reasonableness'. When a reconsideration is done by the same member who did the original ruling it amounts to little more than a questioned - 'are you sure?' - request:[5] In addition to filing his appeal from the June 28, 2022 LAT decision, the Appellant also filed a request for a reconsideration of that decision by the LAT. In that request, the Appellant set out basically the same arguments that he raised on appeal. In its reconsideration decision dated January 23, 2023, the LAT set out all of the Appellant’s concerns with its original decision, gave further reasons designed to meet those concerns and dismissed the request for reconsideration.
[6] With respect to the Appellant’s submission that the LAT failed to set out his diagnoses, the LAT explained that it did not do so because the parties were largely agreed on his diagnoses. The Appellant’s assessors diagnosed him with major depressive disorder and somatic pain disorder and Pafco’s assessor diagnosed him with an adjustment disorder with mixed anxiety and depressed mood and a somatic pain disorder. Thus, according to the LAT, it was not necessary for it to rule on the diagnoses, but only on the degree of impairment caused by the diagnosed disorders.
[7] With respect to the LAT’s alleged failure to deal with Dr. Harnick’s report, the LAT stated at para. 10 of its reconsideration decision:Dr. Harnick’s report was not mentioned in my decision because other than diagnosing the [Appellant] with a mental health disorder, it was not very persuasive. Dr. Harnick did not comment on how the psychological impairments affects the [Appellant’s] ability to adapt. Thus, while I considered Dr. Harnick’s diagnosis of somatic pain disorder, it did not assist me in deciding the ultimate issue in dispute. [8] The LAT also dealt with the Appellant’s argument that it excluded his reports of pain in its analysis of whether he met the threshold for a catastrophic designation. In doing so it acknowledged that its original decision “may have left the [Appellant] with the impression that his reports of pain were not fully considered in my analysis of whether he met a level of marked impairment in adaptation.” As a result, it decided to focus on the “reports of pain” and to outline why, even if these reports of pain were taken into account, the Appellant “did not reach the threshold for a catastrophic designation.” Further, the LAT stated at para. 14:I also wholly agree that in accordance with the decision in Pastore v. Aviva, reports of pain should be considered with respect to the [Appellant’s] impairments on account of his pain disorder. I find in this case, they were considered. [9] In the balance of the reconsideration decision the LAT reviewed the evidence regarding the effect of the Appellant’s mental and pain disorders and found as follows, at para. 31:To summarize the [Appellant] is claiming I failed to take into consideration all the mental and pain disorders affecting his ability to function in adaptation. Even if I were to accept all the difficulties reported by the [Appellant] as an inability to adapt to stressful circumstances, the evidence still demonstrated that he is quite functional and at most moderately impaired. The Decision provides additional reasons why I preferred the respondent’s assessment over the [Appellant’s] in this regard. I find that even if I had made an error in how I considered the [Appellant’s] reports of pain in the Decision, having reviewed the evidence again through the lens of pain, it would not lead to a different result as required by Rule 18.2(b). [10] Thus, the LAT both found that it had considered the evidence regarding pain and its effect on the Appellant’s ability to function in adaptation in its original decision and that if it had erred in not doing so, a review of the evidence through that lens did not change its conclusion about the level of the Appellant’s impairment.
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