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Administrative - They Who Hear, Decide

. Warren v. Licence Appeal Tribunal

In Warren v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court considered a case involving the principle that 'they who hear, decide':
Second Appeal: Withdrawal of Decision and Institutional Bias

[15] On the second appeal, the appellant argues that the decision by the LAT to withdraw a decision erroneously rendered by an adjudicator who had not heard the oral evidence breached procedural fairness and demonstrated institutional bias.

....

[24] The primary issue raised on the second appeal is whether the actions of the LAT raise a reasonable apprehension of bias or breached procedural fairness.

[25] The appellant submits that the LAT is biased because it was not transparent about its procedures in issuing the withdrawal order despite requests for information. The appellant argues that contrary to the ATAGAA, the LAT has not published a code of conduct for its members and not published public accountability documents as required. The appellant also cites statistics that show that the LAT finds for the Insurer 84% of the time. For IRB determinations, the appellant relies on statistics showing that the LAT finds for the insurer 75% of the time. The appellant argues that these statistics, and the lack of public accountability documents, create an apprehension of institutional bias in a reasonable person’s mind giving the appearance that the LAT favours insurers.

[26] The appellant also argues that the LAT violated the duty of procedural fairness by not explaining the administrative error and the process it followed to correct it in issuing the withdrawal order, and not following its own rules of practice which require submissions when issuing an order. The appellant argues that the LAT failed to disclose the procedure it relied on when issuing the different decisions.

[27] I do not accept these arguments. The LAT provided a reasoned explanation for the decision leading to the withdrawal order and cured the effect of the error. Indeed, 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. By withdrawing that decision and explaining the error, the LAT proceeded in a manner which was efficient, responsive, and proportional, and should have been a step that saved the parties time and money. The remedy—withdrawing the decision improperly rendered by an adjudicator who had not heard the oral evidence—was the remedy sought by the appellant. The appellant concedes the LAT remedied the deficiency.

[28] There is no evidence that assigning the decision to an adjudicator who did not hear the oral evidence resulted from institutional bias. I also find that the LAT has published a code of conduct for its members and other documents required by the ATAGAA.

[29] An administrative error corrected by the tribunal, which then afforded the requisite procedural fairness by ensuring that the adjudicator who heard the evidence rendered the decision, does not raise a reasonable apprehension of bias. This new hearing cured any procedural fairness breach, in a fair process which included having the adjudicator who heard the evidence render the decision. Adverse rulings, on their own, do not raise a reasonable apprehension of bias.

[30] The appellant seeks to argue for the first time on appeal that the LAT is institutionally biased toward insurers. The appellant did not raise the institutional bias claim before the Tribunal. The institutional bias argument should have been raised earlier, to allow the LAT and the insurer to address the issue on a complete factual record.

[31] Nor is there any probative evidence on the issue of institutional bias. The appellant relies on statistics to argue that the LAT lacks adjudicative independence. This court rejected an attempt to use statistics to show an apprehension of bias on an individual basis in Gilmor et al. v Nottawasaga Valley and The Township of Amaranth, 2015 ONSC 5327 at para. 79. Generally, without expert evidence, statistics alone cannot establish reasonable apprehension of bias: Zupko v. Canada (Citizenship and Immigration), 2010 FC 1319 at para. 22; see also Jaroslav v. Canada (Citizenship and Immigration), 2011 FC 634 at paras. 53-57 and Turoczi v. Canada (Citizenship and Immigration), 2012 FC 1423 at paras. 9-15.



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