Should an unsuccessful party at a LAT hearing appeal a reconsideration decision, or apply for judicial review? Both remedies are legislated under the Statutory Accidents Benefit Schedule and the Insurance Act and both bring you to a three judge panel at Divisional Court. But the availability of both remedies has led to administrative headaches at the Divisional Court, due to the different procedural requirements for each under the Rules. It may also lead to the unintended outcome of a party using its right of statutory appeal to challenge the Court’s refusal to grant judicial review. The resolution of these thorny procedural questions finally may have come in the recent Ontario Court of Appeal decision Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446.
The claimant, Ms. Yatar, was injured in a February 2010 motor vehicle accident. The following year, TD Insurance denied her claims for IRBs and housekeeping and home maintenance benefits. Over the next nine years, she took various steps to challenge the denials. She completed a mediation with FSCO. She filed a Notice of Action in the Ontario Superior Court, which was dismissed by way of a consent order. In March 2018, she brought a LAT application before the Tribunal. The adjudicator found the application was statute barred, as it was commenced more than two years after the denial of benefits. In April 2020, Ms. Yatar requested a reconsideration. The Tribunal upheld its decision and dismissed the request.
Ms. Yatar then appealed the reconsideration decision to the Divisional Court, using her statutory right of appeal under the Insurance Act. She also concurrently brought an application for judicial review to the same court, asking that the two proceedings be heard together. The Divisional Court dismissed the appeal because it failed to raise an error of law. With respect to the application for judicial review, the Divisional Court held that it could only consider judicial review “if at all” in “exceptional circumstances”. It found that Ms. Yatar had available to her adequate alternative remedies through the Tribunal appeal process and her statutory right of appeal to the Divisional Court. As such, it found no exceptional circumstances in her case and it refused to exercise its discretion to hear the judicial review application.
The main issue before the Court of Appeal was whether the Divisional Court erred in limiting judicial review to “exceptional circumstances”, where there was also a statutory appeal of a Tribunal decision. Writing for the three judge panel which included Justices Lauwers and Zarnett, Justice Nordheimer dismissed the appeal. He found that the Divisional Court properly exercised its discretion, and properly applied the factors from the Supreme Court of Canada decision Strickland v. Canada (Attorney General) in concluding there were adequate alternative remedies available such that refusing judicial review was appropriate.
He held that an application for judicial review is guaranteed under section 280(3) of the Insurance Act, but granting the requested relief is discretionary and rare. This is underscored by the April 1, 2016 legislative changes for accident benefits dispute resolution. These gave the Tribunal “exclusive jurisdiction at first instance” to resolve SABS disputes. The legislative scheme establishes the right to reconsideration of the Tribunal’s initial decision. As well, the amended License Appeal Tribunal Act restricts the statutory right of appeal of Tribunal decisions exclusively to questions of law. Justice Nordheimer held that all these changes indicate the legislature’s intent to limit appeals through the courts. Judicial review is a truly exceptional remedy where reconsideration and the limited right of appeal are inadequate to address “the particular factual circumstances” of each case.
The Court of Appeal’s decision provides some needed direction for the availability of appeals in accident benefits matters, as well as the meaning of “exceptional circumstances.” While the Court did not give any indication of what “exceptional circumstances” might be, one could hypothesize that it could include application of judicial discretion found in the Courts of Justice Act, that a LAT adjudicator may lack.
From a practical perspective, Justice Nordheimer addressed the administrative difficulties identified by the Divisional Court with a procedural ruling: a party seeking both judicial review and its statutory right of appeal must now bring both proceedings together, then file a motion to consolidate the two proceedings. This should reduce the number of filed materials, save judicial resources and lead to a Practice Direction remedying issues such as the different time periods for filing.
Jonathan White is author of this blog and member of the LAT practice group. For more information about this decision, or if you have a question about a similar file, please contact Jonathan at 416-777-5204.