Mr. Taylor brought an Application to the LAT with respect to benefits denied in regards to a July 2015 incident. Mr. Taylor had been the passenger on an ATV that crashed. Mr. Taylor suffered catastrophic injuries as a result of the incident. However, the central issue was whether or not Mr. Taylor had been involved in an “accident” pursuant to the Statutory Accident Benefits Schedule.
As a result of this dispute, a hearing by way of written submissions without witness evidence was agreed upon by both parties. In the written submissions of Mr. Taylor, an affidavit was provided. Aviva took issue with the submission of the affidavit due to the fact that no witness evidence was to be proffered.
Aviva sought a resumption of the case conference to have the affidavit excluded, or to be permitted to cross examine the affiant.
The LAT refused the request. The refusal however, was communicated by the case management officer overseeing the file. No name of a vice chair or chair of the LAT was provided as having made a determination. No reasons were given other than “the reasons given are insufficient to grant the adjournment”.
Aviva took the position that this denial was a violation of the concept of natural justice and procedural fairness that Aviva was entitled to. Aviva then brought an Application for Judicial Review before Divisional Court.
Unlike an appeal where a stay of proceeding is automatically granted, Judicial Review of a LAT proceeding does not create an automatic stay of the proceeding. As a result, Aviva had to bring a motion for a stay of proceeding, or a writ of prohibition, in order to prevent the LAT from proceeding with a determination on the issue before the Judicial Review could be heard.
In order to be successful on a motion for a stay of proceeding, parties must show that the following criteria have been met, as set out in RJR MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311:
1. Is there a serious issue to be tried?
2. Would the moving party suffer irreparable harm if the injunction was not granted?
3. Does the balance of convenience favour the granting of the order?
Justice Kitely found that Aviva had not met any of the three RJR criteria. While she noted that the letters from the LAT were “odd”, and that there was significant information missing from them, she did not find that reasons were necessarily required.
With respect to the criteria of a serious issue, Kitely J. found that the issue of procedural fairness was not a serious issue, as Aviva could still, after a final decision, file an Application for Judicial Review, or appeal, depending on the reasons for same.
Justice Kitely also opined that Mr. Taylor would be harmed if the matter was delayed any further. She did not find that the balance of convenience favoured granting the order to stay the proceedings.
Both Mr. Taylor and the LAT took the position that this judicial review application was premature. Justice Kitely agreed. Referencing the Court of Appeal, she found that the motion for a grant of prohibition “offends the general rule against judicial non-interference with ongoing administrative processes. (Velochay v. College of Massage Therapists of Ontario, 2012 ONCA 541. She further stated that absent any exceptional circumstances, a party cannot engage the judicial system until an administrative tribunal process has “run its course”.
Aviva argued that the exceptional circumstance in this matter existed in that the LAT had recently taken over jurisdiction for dispute resolution of all accident benefits matters in Ontario. Aviva further argued that if deficits exist in the process, it is imperative that these deficits be addressed immediately such that they do not infringe on the rights of parties and lead to a denial of natural justice.
Justice Kitely disagreed, and her short comment with regards to same is indicative of how the Court views the expertise of the Tribunal, as well as the level of deference that is to be shown to same.
”In my view, it is even more important when the Tribunal has so recently been given jurisdiction that it be given an opportunity to iron out wrinkles in procedural issues without an urgent stay motion”.
Of note, Justice Kitely found that Aviva should have proceeded to reconsideration first, rather than to Judicial Review, even though there is no requirement to do so found in the LAT Rules and the LAT has made clear in numerous communications that reconsideration is not a mandatory step. Also of importance, recent proposed amendments to the LAT rules suggest that reconsideration should only be available to parties in the case of a final decision, and not any interlocutory matters.
It is clear, upon review of Justice Kitely’s decision, that the Court is extremely hesitant to interfere with any decisions made by an administrative tribunal. Where the LAT has not been determined to be a tribunal of specific expertise (having members that are not lawyers, have no legal background, and have no background in motor vehicle accidents and injuries), the level of deference granted is somewhat surprising. The question that remains is whether this same level of deference will be shown once a proceeding has taken its course, and a judicial review is brought at the end of a proceeding. Nothing in this decision suggests that the Divisional Court will ignore real concerns of procedural fairness and natural justice when brought before it at the end of a proceeding. Regrettably, if there is a perception that such concerns exist at an earlier stage, there would appear to be little recourse but to wait until the end to have this reviewed.
If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222