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Bias - Review (Appeal/JR). Huynh v. Security National
In Huynh v. Security National (Div Ct, 2026) the Divisional Court (IMHO sadly) endorses the broadly-accepted (albeit, here rule-supported) practice of administrative reconsiderations being re-heard and decided by the originally-deciding tribunal member:Was it a breach of procedural fairness for the same adjudicator to determine the request for reconsideration?
[21] The appellant’s other ground of appeal, that it was a breach of procedural fairness for the same adjudicator to determine the request for reconsideration, must also fail. Rule 18.1 of the Tribunal’s Rules expressly provides that a request for reconsideration “may be heard by the same member whose decision is the subject of the request, or by another member.” This court has repeatedly found in the administrative context that it is not a breach of procedural fairness for a tribunal member to reconsider his or her own decision: Warren v. Ontario (Licence Appeal Tribunal), 2022 ONSC 3741 (Div. Ct.), 25 C.C.L.I (6th) 33, at para. 19; Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 (Div. Ct.), at paras. 90-99; Decosse v. Miklos, 2019 ONSC 6034 (Div. Ct.), at paras. 25-26. The practice of having members reconsider their own decisions contributes to efficiency and expeditiousness, since the member is already familiar with the file. Further, as this court stated in Warren, at para. 22: “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.”
[22] The appellant has not shown a breach of procedural fairness with the application of the Tribunal’s rule, either generally or in the circumstances of this case. Contrary to his submission, the adjudicator did engage with his arguments in the reconsideration decision. She was fully aware of his claim that she was required to accept uncontradicted medical evidence. However, she rejected this argument, stating at para. 12 of her reasons that she was “under no obligation to accept at face value the findings or opinions of the medical professionals” put before her, even if there is no contradictory evidence. She also generally rejected the appellant’s arguments as a request to reweigh evidence, which is not the function of a reconsideration. There was no unfairness in the way the adjudicator responded to the appellant’s request for reconsideration. . Mohamud v. Law Enforcement Complaints Agency [no SOR]
In Mohamud v. Law Enforcement Complaints Agency (Ont Divisional Ct, 2024) the Divisional Court noted that there was no SOR for issues of bias, here on a JR:[43] There is no standard of review on the issue of bias. The question is whether there is a reasonable apprehension of bias.[9] Allegations of bias must be considered in their specific context and in view of the well-established presumption of impartiality. The applicant must show strong grounds to rebut that presumption.[10]
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