Executive Summary: Key Legal and Evidentiary Issues

• Scope and application of the reasonable apprehension of bias test to a Licence Appeal Tribunal adjudicator with a long-standing public advocacy history in the autism and caregiving space
• Weight to be given to an adjudicator’s post-appointment public advocacy activities, particularly a published article and ongoing involvement in caregiver policy, when deciding a claim involving a catastrophically impaired autistic claimant
• Proper treatment of the strong presumption of judicial and tribunal impartiality and what evidence is sufficient to displace it in the context of subject-matter expertise versus advocacy
• Significance of the timing of a party’s bias allegation, including whether a failure to research an adjudicator beforehand or to raise concerns at the hearing should bar a later bias claim
• Consequences and remedies where reasonable apprehension of bias is found, including invalidation of the entire tribunal decision and remittal for a fresh hearing before a different adjudicator
• Interaction between catastrophic impairment/attendant care benefit claims under the Statutory Accident Benefits Schedule and appellate review limited to procedural fairness rather than merits

Facts of the case

The case arises from a statutory accident benefits dispute involving a young woman, Ms. Baraah Abou-Gabal, who has severe autism spectrum disorder (Level 3) and significant intellectual and functional impairments. From childhood she required considerable support in social communication and behaviour, did not complete her education, wears a diaper regularly, and is fully dependent on her parents and family for supervision and basic activities of daily living.

On July 7, 2018, when she was 17, Ms. Abou-Gabal was riding her bicycle with her brother in a parking lot and ran into a stopped vehicle, being thrown from the bicycle as a result. She alleged injuries from this incident and subsequently applied to her accident benefits insurer, Economical Insurance Company, for a designation of catastrophic impairment under section 3.1 of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). She sought a catastrophic impairment designation and claimed attendant care benefits together with various treatment plans. Economical denied her claims, and she brought the dispute to the Licence Appeal Tribunal (LAT).

Proceedings before the Licence Appeal Tribunal and reconsideration

The LAT hearing took place on May 6, 2024, before Vice-Chair Jeremy Roberts. The adjudicator accepted that Ms. Abou-Gabal had autism prior to the accident but found that her symptoms worsened as a result of the collision. On that basis, he concluded that she sustained a catastrophic impairment due to an extreme impairment in adaptation caused by the accident. The adjudicator held that she was entitled to attendant care benefits in the amount of $1,920.67 per month going forward, along with other relief in respect of benefits.

Economical applied to LAT for reconsideration on several grounds, including an allegation that there was a reasonable apprehension of bias arising from the adjudicator’s background and public advocacy related to autism and caregiving. The LAT dismissed the reconsideration request. It found that Economical could have raised the issue earlier, since the relevant information about the adjudicator’s background was publicly available before the hearing, and characterized the insurer’s timing as “waiting in the weeds” until after receiving an unfavourable decision. LAT also concluded that Economical had not rebutted the presumption of impartiality and held that the materials relied upon showed the adjudicator as a subject-matter expert on autism, not as someone demonstrating bias.

The appeal to the Divisional Court

Economical appealed both the original decision and the reconsideration decision to the Ontario Superior Court of Justice, Divisional Court. The central ground of appeal was not the merits of the catastrophic impairment or accident benefits determination, but whether there was a reasonable apprehension of bias given the adjudicator’s advocacy activities. There was no allegation of actual bias; the issue was solely apprehended bias.

The insurer argued that only after the hearing did it become aware of the adjudicator’s extensive background in advocacy for persons with autism, and that this history—especially a continued pattern of advocacy after his appointment to the LAT—would lead a reasonable, informed person to fear that the adjudicator could not decide fairly in a case about an autistic claimant’s entitlement to attendant care benefits.

Legal framework on reasonable apprehension of bias

The Divisional Court reviewed the governing legal test for reasonable apprehension of bias as established by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board). The question is what an informed person, viewing the matter realistically and practically and having thought the issue through, would conclude: would such a person think that it is more likely than not that the decision-maker, consciously or unconsciously, would not decide fairly. The court also relied on Yukon Francophone School Board v. Yukon (Attorney General) and Wewaykum Indian Band v. Canada, which emphasize that there is a strong presumption of impartiality, a high threshold to find apprehended bias, and a contextual, fact-specific inquiry focused on whether there is a real likelihood or probability of bias rather than a mere suspicion.

At the same time, the court recognized that adjudicators and judges are not required to have “empty minds.” Their backgrounds, identities, and experiences can inform their work so long as those experiences do not close their minds to the evidence and issues before them. Subject-matter expertise or pre-appointment involvement in advocacy or policy does not automatically amount to bias, particularly where their advocacy is not directly linked to the specific parties or issues in dispute.

The adjudicator’s advocacy background and post-appointment conduct

There was no dispute that Vice-Chair Roberts had a significant record of both employment and volunteer activities in support of people with autism, including a personal connection: his younger brother has autism. Before becoming an adjudicator, he served as a Member of Provincial Parliament from June 2018 to May 2022 and publicly framed his political career as driven by the goal of improving support for children and youth with special needs. In a quoted statement after his time in office, he emphasized that ensuring better support for children with special needs was the reason he ran for elected office and that the province was in a much better position than four years earlier.

He also wrote articles advocating for increased support for caregivers of individuals with autism spectrum disorder and other complex needs. Of particular importance to the Divisional Court was that his advocacy did not end with his appointment to the LAT in December 2022. In August 2022, shortly before appointment, he wrote about arranging a $97 million investment to improve experiences and outcomes for children and youth with complex special needs and described his family’s struggles in obtaining better care for his brother. He characterized supporting those with special needs as the “driving force” behind his move into politics and something that continued to hold an important place in his heart.

More significantly for the court’s analysis, in November 2023—after his LAT appointment and only months before he presided over Ms. Abou-Gabal’s case—he wrote another article discussing systemic under-support of caregivers, endorsing the Canadian Centre for Caregiving Excellence and the National Caregiving Summit, and urging readers to “join our conversation” and contact their elected officials to improve support for caregivers. The piece described caregivers as essential to the health and social support system and argued that they receive little governmental assistance, leading to burnout and other hardships.

Timing of the bias allegation and duty to self-disclose

The LAT had treated the timing of the insurer’s bias allegation as a central reason to dismiss reconsideration, criticizing Economical for not raising the issue before or during the hearing. The Divisional Court accepted, in general, that parties cannot sit on known information and raise bias strategically only after receiving an adverse outcome. However, the court stressed that whether the information pre-dated the hearing was not determinative.

The court noted that parties are not expected to research adjudicators in advance of every tribunal hearing. Instead, the system relies heavily on adjudicators and judges to self-identify and disclose potential conflicts or circumstances giving rise to an apprehension of bias. There was no evidence that Economical actually knew of the adjudicator’s advocacy background before the decision, and the court was not prepared to infer tactical delay. As a result, the timing of Economical’s allegation could not be used to shut the door on a genuine bias concern.

Finding of reasonable apprehension of bias

The Divisional Court respectfully disagreed with LAT’s ultimate view that the adjudicator’s record merely reflected subject-matter expertise. It emphasized that the concern here was the adjudicator’s ongoing, active advocacy after his appointment to the LAT on issues closely tied to the very subject matter of the case—support for people with severe autism and their caregivers, including attendant care-type supports. This post-appointment advocacy, built upon and explicitly linked to his personal experience and his stated “driving force” for public service, created a reasonable appearance that he might be predisposed in favour of claimants in similar circumstances.

The court acknowledged that adjudicators come to office with past experiences and roles, but cited authority for the proposition that, once appointed, judicial and quasi-judicial officers are expected to “divorce” themselves from their past and dedicate themselves to their new vocation of impartial adjudication. Continued public advocacy on the same core issues that arise in their cases risks eroding public confidence that decisions are made without bias or prejudice and that adjudicators are not swayed by their own campaigns or causes.

In this context, considering the severity of the respondent’s autism, the centrality of attendant care benefits to her claim, and the adjudicator’s repeated, high-profile engagement on precisely that policy terrain after appointment, the court held that a reasonably informed observer would conclude that the adjudicator, consciously or unconsciously, would not decide fairly. Accordingly, the threshold for a reasonable apprehension of bias was met.

Remedy and outcome

Having found a reasonable apprehension of bias, the Divisional Court held that the integrity of the hearing process before LAT was tainted. Once such an appearance of bias arises, the entire decision must be declared void; it is not sufficient to sever parts or to preserve findings on the merits. The proper remedy was to remit the matter back to LAT for a completely new hearing on the merits before a different adjudicator.

Because the court resolved the appeal on procedural fairness grounds, it expressly declined to address the substantive merits of the catastrophic impairment designation, the worsening of the respondent’s condition, or the quantum or duration of any attendant care or other benefits. The previous LAT awards—including the monthly attendant care amount of $1,920.67—were not affirmed or varied; instead, they fell with the tainted decision and will need to be re-determined by the new adjudicator.

In the result, the appeal was allowed in full. Economical Insurance Company was the successful party. The Divisional Court remitted the matter to LAT for a new hearing before a different adjudicator and ordered that costs of $7,500, on an agreed basis and inclusive of all amounts, be paid by Ms. Abou-Gabal to Economical. No further damages or benefit amounts were fixed by the court, and the total monetary recovery on this appeal is limited to that $7,500 costs award, with any future entitlement to accident benefits to be determined afresh by the tribunal.