Volume. 4 Issue. 2 – January 15, 2020
Apprehension of Bias – Recusal & Refusal
Recusal Due to Reasonable Apprehension of Bias – In 19-000081 v Guarantee Company of North America, the adjudicator recused himself during the first day of the hearing and ordered that a new hearing be scheduled before a different adjudicator. The basis for the recusal was the fact that he was “currently seized of a matter related to a similar issue…concerning a similar issue involving the same lawyer, and the same clinic”. The adjudicator “had concerns that, if I was to continue with this matter any further, did not want either party to assert later that this hearing was not fair and that I was biased from having heard other evidence involving essentially the same unique issue on another matter.”
Further, he “wanted to alert the parties to this as a real or potential conflict, or at least a perception of conflict that might undermine my neutrality leading to a reasonable apprehension of bias and whether recusal was necessary”. He noted that the test was “whether an informed person, viewing the matter realistically and practically…would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.” Therefore, he disqualified himself, “in the interest of avoiding any perception of conflict in adjudicating these issues by a reasonable, fair minded and informed person”.
Might Change My Mind – In an earlier motion decision 18-011978 v Gore Mutual, the Tribunal had denied the Applicant’s request that the Respondent’s preliminary issue regarding non-attendance at an IE be struck. As a result, the Applicant indicated, in a lengthy letter, that the Tribunal had displayed “a closed mind and displayed a reasonable apprehension of bias”. The Applicant requested that the adjudicator recuse himself and void his decision.
Refusing the request, the Tribunal found, “an informed person, viewing the matter realistically and practically – and having thought the matter through would conclude that there is no reasonable apprehension of bias.” Concluding, “though the applicant may take issue with my decision in 18-006654 v. Royal Sun Alliance Insurance, an adjudicator’s previous decision-making record is no clear indication that she or he will decide similar matters in the exact same fashion.”
Degrees of LATitude
Under s.42(5) of the Schedule, an insurer may, but is not required to, pay attendant care services incurred before a Form 1 is submitted.
A dispute could arise for the period where there is no Form 1 and a subsequent Form 1 establishes both the need and the amount for the period in question. Can the Form 1 you have in hand be applied to the period for which you do not have a Form 1?
The LAT addresses the question of ‘retroactive’ ACB referencing a lead Tribunal decision in 16-000372 v Unica citing a FSCO decision Kelly v. Guarantee which found that retroactive claims are only payable where urgency and impracticability prevented compliance with s.42(5).
In this ‘Degrees of LATitude’, we bring 3 cases to your attention where the Tribunal considers the question of retroactive ACB.
24/7 Care Interrupted – In 17-005913 v Dumfries Mutual, the Applicant was found entitled to the following ACB amounts:
- $6,000.00 per month from August 1, 2014 to May 26, 2016
- $2,568.17 per month from May 27, 2016 to July 16, 2017
- $6,000.00 per month from July 17, 2017 to date
During the initial period considered, it was determined that the Applicant required 24/7 basic supervisory care. The Respondent argued that as of February 27, 2016 this level of care was not required as she had moved into a new one-level apartment, hence being more accessible for the Applicant. However, the Tribunal found that a new Form 1 addressing 24/7 care would be required before any change would be considered.
For the second period, the Respondent had secured a Form 1 confirming the lower amount noted above being required. This was accepted as it was “the only one to assess the applicant in her new home environment…crucial given that [the assessor]’s recommendation for 24-hour basic supervisory care was largely based on the accessibility issues posed by the applicant’s multi-level home environment at that time”. The Applicant provided a further Form 1 dated July 16, 2017 again recommending 24/7 care, however the Tribunal decided not to retroactively apply this to the prior period (a potential shortfall of $40,000), as it “was the applicant’s decision not to get a new assessment and Form 1 completed until July 2017. No reason was given for this delay.” Nevertheless, the Tribunal once again accepted that the Applicant required 24/7 care from July 16, 2017 ongoing.
ACB: Retro Remains In – Conversely in 2 other cases, the Tribunal considered claims for ACB in the absence of a Form 1. They are in line with the findings in Grigoroff v. Wawanesa, where “the Court was clear that the failure to submit a Form 1 merely delays the payment of attendant care benefits”. “It does not forfeit the right of the insured to make that claim…In essence, the absence of a Form 1 is not a bar to retroactive claims for attendant care.”
In a preliminary issue hearing of 18-003574 v Allstate, the Tribunal found that “the applicant has not followed the requirements set out in section 42(1) of the Schedule and as such her application for an ACB is not complete”. However, “the applicant has the right to continue with her application for an ACB despite the incomplete application which is better dealt with by the hearing adjudicator who will conduct a hearing on the issue of entitlement and quantum and any potential suspension of payment obligations due to the technical non-compliance issue with section 42”. It was further noted that “neither party filed submissions that the Tribunal has allowed a party to make a claim for an ACB based on a retroactive Form 1”.
Similarly, in another preliminary issue hearing of 18-003032 v Guarantee Company of North America, the Vice-Chair, in the absence of case law submitted by the Respondent, was not persuaded by the Respondent that s.42(5) prevents the Applicant from submitting a retroactive Form 1. Accordingly, the Applicant is not barred from proceeding to a hearing on the merits of his ACB claim for the period January 8 to February 8, 2016.
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