Simon's Megalomaniacal Legal Resources

Disability - Bias

. Economical Insurance Co. v. Abou-Gabal

In Economical Insurance Co. v. Abou-Gabal (Ont Div Ct, 2026) the Ontario Divisional Court allowed a SABS appeal, this brought against LAT findings that denied claims for "entitlement to attendant care benefits and a variety of treatment plans".

Here the court allowed a rarely-successful bias appeal:

Reasonable Apprehension of Bias:

[16] This is a case about reasonable apprehension of bias. There is no claim of actual bias.

[17] The Applicant submits that the test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” (Emphasis added.)

See also Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-26; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60.

[18] The Supreme Court has further elaborated on judicial impartiality, bias and prejudice in Yukon and Wewaykum.

[19] The Court stated at paras. 33-34 of Yukon:

33. Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge's identity and experiences not close his or her mind to the evidence and issues. There is, in other words, a crucial difference between an open mind and empty one. Bora Laskin noted that the strength of the common law lies in part in the fact that

the judges who administer it represent in themselves and in their work a mix of attitudes and a mix of opinions about the world in which they live and about the society in which they carry on their judicial duties. It is salutary that this is so, and eminently desirable that it should continue to be so.

("The Common Law is Alive and Well - And, Well?" (1975), 9 L. Soc'y Gaz. 92, at p. 99)

34. The reasonable apprehension of bias test recognizes that while judges "must strive for impartiality", they are not required to abandon who they are or what they know: [R. v.] S. (R.D.), [1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484,] at para. 29, per L'Heureux-Dube and McLachlin JJ.; see also S. (R.D.), at para. 119, per Cory J. A judge's identity and experiences are an important part of who he or she is, and neither neutrality nor impartiality is inherently compromised by them.

[20] In Wewaykum, at para. 58, bias or prejudice was defined as:

a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

(R. v. Bertram, [1989] O.J. No. 2123 (QL) (H.C.), quoted by Cory J. in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 106.)

[21] The threshold for a finding of a reasonable apprehension of bias is a high one, with the burden on the party seeking to establish a reasonable apprehension of bias. Each case must be examined contextually, and the inquiry is fact-specific.

[22] There is a strong presumption of judicial impartiality that is not easily displaced. The test for reasonable apprehension of bias requires a real likelihood or probability of bias: Yukon, at para. 24.

[23] The Respondent refers to Miller v. The Union of British Columbia Performers, 2021 BCSC 1054, 2021 C.L.L.C. para. 230-042, at para. 95, aff'd 2022 BCCA 358, 2023 C.L.L.C. para. 230-021. In Miller, the British Columbia Supreme Court rejected an argument of reasonable apprehension of bias made on the basis that the adjudicator was an "LGBTQ+ activist". The court relied on a tribunal decision, Oger v. Whatcott, 2018 BCHRT 183, in which the same adjudicator was similarly accused of bias. The adjudicator dismissed the recusal request in part because the "evidence demonstrated only that the member came to the tribunal with experience in human rights law, which is not evidence of bias." The court in Miller endorsed this analysis and held that the petitioner failed to demonstrate that the adjudicator was not impartial.

[24] Many of the cases relied on by the Respondent are instances where an adjudicator's involvement or actions took place prior to their appointment.

[25] There is no dispute that the Adjudicator has a significant employment and volunteer history in advocating for people with autism. The Adjudicator's younger brother has autism. I am not going to set out his entire history of his efforts in this area, as they are set out in detail in the Appellant's factum. I will highlight a few so that the context in which this decision is being made can be understood.

[26] Just prior to being appointed as an adjudicator, the Adjudicator served as a Member of Provincial Parliament from June 7, 2018, until May 3, 2022. Shortly after his term in parliament ended, he is quoted as saying: "This is the reason I ran for elected office, to make sure we were doing a better job supporting kids with special needs. I would say we're in a much better spot today than we were four years ago."

[27] The Adjudicator penned articles advocating for increased support for caregivers of those with autism spectrum disorder. The adjudicator was appointed to the LAT on December 8, 2022. He wrote another article shortly before his appointment to the LAT on August 26, 2022, in an article for thehub.ca. He discussed his role (as an MPP) in arranging a $97 million investment "to improve the experiences and lifelong outcomes for more than 1100 children and youth with complex special needs". He also outlined the difficulties his family experienced in getting improved care for his younger brother. He emphasized that supporting those with special needs was his main motivation for entering politics: "I have written elsewhere of my experience growing up with a younger brother with special needs. It was the driving force for my motivation to enter politics and continues to hold an important place in my heart."

[28] He authored another article on this topic on November 9, 2023 (approximately six months before the hearing underlying this request for reconsideration but, more importantly, it was after his appointment as an adjudicator) for thehub.ca. Here, Vice-Chair Roberts advocated for greater resources to be extended to caregivers and endorsed the Canadian Centre for Caregiving Excellence and the National Caregiving Summit (an organization and an event that he took part in creating).

[29] In the article, the Adjudicator reiterates that his involvement in advocacy for additional support for caregivers stems from his own experiences with his brother, who is on the autism spectrum and deals with severe developmental delays and behavioural challenges. In the article, the Adjudicator states as follows:

It's not an exaggeration to say that without family members assisting with the care of their loved ones our health and social support systems would collapse.

Despite their vital role in the system, caregivers receive little to no support from our governments. Because of this, they often experience high levels of burnout, mental health challenges, and difficulties maintaining jobs.

A few years ago, a group of concerned citizens banded together and, with support from the Azrieli Foundation, launched the Canadian Centre for Caregiving Excellence (CCCE), our first umbrella organization to advocate for caregivers across Canada. This week, CCEC convened Canada's first National Caregiving Summit in Ottawa, which brought together hundreds of advocates, researchers, caregivers, and government partners to kick-start a discussion about how we as a society can better support these vital contributors. I was proud to be a panelist and participant.

The goal is to develop a comprehensive National Caregiver Strategy, which would ensure that we have a coordinated approach nationwide for supporting caregivers. A plethora of problems could be addressed through such a strategy ...

...

So join our conversation! Check out the updates from the summit. And talk to your elected official about what they are doing to support caregivers. Together, we can make sure that caregivers get the supports we need so that we can continue doing what matters most: caring for those we love.

[30] The biography included in the article states as follows:

Jeremy Roberts is the former MPP for Ottawa West - Nepean and is a Senior Fellow at the Munk School of Global Affairs & Public Policy. Views expressed here are his own.

[31] While he is to be commended for his work in this area and adjudicators are not expected to abandon who they are, I accept that in this case a reasonably informed person, viewing the matter realistically and practically would conclude that the adjudicator, whether consciously or unconsciously, would not decide the matter fairly.

[32] Judges and adjudicators all have backgrounds prior to their appointment. However, once appointed, we "divorced ourselves from our past and dedicated ourselves to our new vocation": Fogal v. Canada, 1999 CanLII 7465 (FC), [1999] 164 F.T.R. 99 (F.C.), aff'd [2000] 258 N.R. 97 (F.C.A.), leave to appeal refused, [2001] S.C.C.A. No. 84.

[33] Public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.

....

[36] On the second issue, I respectfully disagree with the LAT’s determination that the material the Appellant relied on did not demonstrate a reasonable apprehension of bias. The concern in this case is that the Adjudicator's advocacy for people with autism and their caregivers, continued after his appointment to the LAT. Membership in an association, without more, is not a basis for concluding that a perception of bias can reasonably be said to arise. However, the Adjudicator's ongoing advocacy efforts following his LAT appointment to support caregivers for people with autism, previously described as his "driving force", is sufficient to raise a reasonable apprehension of bias when he is deciding a case specifically determining whether the claimant, who suffers from severe autism, is entitled to attendant care benefits.

[37] Once a hearing is tainted by the appearance of bias, the integrity of the decision requires that the decision in its entirety be declared void, and the entire matter is to be resubmitted for a new hearing.

. McCready v. Toronto Community Housing Corporation

In McCready v. Toronto Community Housing Corporation (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion to extend time to commence an RTA s.210 appeal.

A social housing tenant unsuccessfully argues disability bias and lack of fairness:

[9] The tenant’s second argument is that the Board likely had “some unconscious but well-meaning bias” against her because she was disabled and unable to appear competent. She argues that although she had been paying full rent plus an additional amount towards arrears since January 2024, the Board’s likely biased view of her led it to find her incapable of continuing to pay rent plus a payment arrangement. The tenant relies on “crip time,” which she explains is a concept reflecting the non-linear and protracted pace of progress for disabled individuals. She also underscores the progress she has made since January 2024 in consistently paying her rent and in pursuing various avenues that will increase her ability to obtain a job and to have additional supports to assist her.

[10] In her additional submissions, the tenant also states that her ability to participate in the June 2024 Board hearing was “severely limited” and that she did not formally request accommodation because unsupported disability affects communication and self-advocacy.

[11] I agree with the landlord that the tenant does not have a tenable appeal. My conclusions are not meant to undermine the struggles the tenant has faced, nor the efforts she is making to move forward. But the court’s task is not to assess the tenant’s challenges, intentions, or efforts in isolation. It is instead to review the decision of the Board for errors of law.

....

Bias/Procedural Fairness

[17] There is also no plausible likelihood the tenant will succeed in her submission that the Board was biased or breached procedural fairness. The tenant’s submission that the Board member was likely biased is a bald statement without factual basis. Establishing bias requires meeting a stringent standard. In this case, the Board provided detailed reasons for not permitting the tenant to proceed with a proposed repayment plan. These reasons included that the arrears owing were substantial and exceeded the Board’s monetary jurisdiction; the arrears of rent dated back more than 6 years; and the landlord had attempted to work with the tenant on multiple occasions but the arrears only seemed to increase after each repayment plan was entered into. In recognition of the tenant’s circumstances, the Board also found it would not be unfair to delay the termination of the tenancy. Considering the Board’s detailed reasons and the absence of a factual basis to demonstrate bias, there is no prospect of the tenant succeeding on this ground.

[18] The tenant also asserts she was denied procedural fairness because she was severely limited from participating in the June 3, 2024 hearing that led to the order she seeks to appeal. She states that at that time, she did not have a wheelchair and had only been receiving consistent income supports for six months. However, she does not dispute that she attended and participated in the hearing, which occurred by videoconference. She also acknowledges she did not raise any request for accommodation at the hearing. It does not appear that she raised any issue of procedural unfairness at the hearing, which means this argument would be raised for the first time on appeal. In all of the circumstances, there is no reasonable prospect of success on this argument on an appeal.

Additional Information about Personal Progress and Readiness for Employment

[19] The tenant is to be applauded for the efforts she has made to pursue her studies and health recovery. However, much of the information she provides arose after the Board’s order and could only be considered by the court if the tenant were successful in introducing it through a motion for fresh evidence. The Board was entitled to weigh the relevant circumstances at the time and grant the order terminating the tenancy. The additional information provided by the tenant, even if it were admitted on appeal, would not provide a basis for the court to find an error of law in the Board’s decision.