Exceptional circumstances not needed for judicial review of tribunal decision: Ont. Court of Appeal

Insurer rejected injured's claim for income replacement, housekeeping, home maintenance benefits

Exceptional circumstances not needed for judicial review of tribunal decision: Ont. Court of Appeal

An Ontario party injured in a motor vehicle accident recently raised the issue of whether the province’s Divisional Court erred by limiting judicial review to “exceptional circumstances” where there was a statutory appeal from the Licence Appeal Tribunal’s decision.

In Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, the appellant was insured under a motor vehicle liability insurance policy from the respondent insurance company. She was injured in a motor vehicle accident in 2010.

The appellant submitted an accident benefits application and an employer’s confirmation form to the insurer. She elected to claim income replacement benefits (IRBs) and also claimed housekeeping and home maintenance benefits under the Statutory Accident Benefits Schedule – Accidents on or after Nov. 1, 1996, O. Reg 403/96 (SABS).

The insurer initially paid the appellant. However, pursuant to a January 2011 letter, it stopped paying IRBs and housekeeping and home maintenance benefits due to her non-submission of a completed disability certificate. It required her to attend three medical examinations to determine whether she had a right to these benefits.

Based on the examination results, the insurer denied the appellant’s claim for housekeeping and home maintenance benefits in a February 2011 letter and the claim for IRBs through a September 2011 letter.

The appellant applied for mediation at the Financial Services Commission of Ontario to dispute this denial. She then brought an action to the Ontario Superior Court of Justice, which dismissed her action through a consent order.

In 2018, the appellant filed an application with the Licence Appeal Tribunal. The tribunal’s adjudicator determined that the application was statute-barred under the two-year limitation period in s. 281.1(1) of the Insurance Act, R.S.O. 1990, c. I.8, and in s. 51 of the SABS. The same adjudicator dismissed the appellant’s reconsideration request.

The appellant appealedthe tribunal’s decision to the Ontario Divisional Court. She then filed a judicial review application to the Divisional Court and asked for her appeal and her application to be heard together.

The Divisional Court dismissed the appeal based on the appellant’s failure to show a legal error in the tribunal’s decision. The court also dismissed the judicial review application. It said that judicial review of the tribunal’s decision was only available in exceptional circumstances, which were lacking in this case.

The Ontario Court of Appeal dismissed the appeal. First, the appellate court ruled that the Divisional Court properly considered the factors in Strickland v. Canada (Attorney General), 2015 SCC 37 and correctly concluded that the existence of an adequate alternative remedy was a valid reason to refuse to exercise its discretion to hear and to determine the judicial review application.

According to the appellate court, the Divisional Court’s mention of “exceptional circumstances” was unfortunate because it could cause confusion regarding access to judicial review as a remedy in cases where there was a statutory appeal. It could also create similar confusion in cases involving other administrative decision-makers, said the court.

Judicial review was always available, as provided by the relevant legislative sources and case law, the appellate court said. The question would be whether it was appropriate for the court to exercise its discretion to hear and to determine the judicial review application.

Second, the appellate court determined that, even assuming that the Divisional Court should have considered the judicial review application, the appellant failed to show anything unreasonable in the adjudicator’s reconsideration decision.

The appellant contended that the adjudicator unreasonably found that the January 2011 letter amounted to a valid denial of the three kinds of benefits. But the appellate court held that this argument was misreading the adjudicator’s decision.

Lastly, the appellate court noted that the proper practice directions and/or counsel’s co-operation could assist in minimizing the difficulties that the Divisional Court identified relating to the concurrent appeal and judicial review proceedings.

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