Justice D.L. Corbett J. of the Divisional Court dealt with the request to appeal the decision of Arbitrator Jarda of the Licence Appeal Tribunal in Kahissay v. Intact Insurance, 2022 ONSC 6357 (CanLII).  This appeal dealt with an interlocutory order of the LAT. Arbitrator Jarda directed the appellant to attend insurer-requested medical examinations in connection with the appellant’s claim to be catastrophically impaired within the meaning of the Statutory Accident Benefits Schedule Arbitrator Jarda also stayed the LAT proceedings pending the appellant’s compliance with the order to attend the IEs.

The Registrar issued a notice pursuant to Rule 2.1 that the court was considering dismissing the appeal. Section 2.1 of the Rules of Civil Procedure indicated “the court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.” A notice pursuant to Rule 2.1 potentially applied because Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (“Penny”) stated that the Divisional Court has no jurisdiction to hear an appeal from an interlocutory order of the LAT.

Justice Corbett relied on Penny and confirmed that the Divisional Court has no jurisdiction to hear an appeal from an interlocutory order of the LAT. Penny was decided by a panel of the Divisional Court and therefore was binding on Justice Corbett as a single judge deciding a R.2.1 issue. Further, Justice Corbett stated that the contrary line of authority cases including Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (“Taylor”) and The Personal Insurance Co. Ltd. V. Jia, 2020 ONSC 6361) (“Jia”) have the correct result but both should have been dismissed for lack of jurisdiction. Further, Justice Corbett stated that Penney has settled the issue and there is no purpose to send the issue to another panel of the Divisional Court.

In the alternative, the appellant asked that her appeal be converted to an application for judicial review. Justice Corbett granted the request, without prejudice to any argument that may be made by the respondent that the application for judicial review is similarly premature. The appellant addressed the “exceptional circumstances” test for seeking judicial review of an interlocutory ruling in her submissions, but that issue was not raised in the R.2.1 notice. Justice Corbett stated that it is open to the court to issue a fresh R.2.1 notice after reviewing the Notice of Application for Judicial Review. Further, if the court does not take that step, it is open to the respondent to raise prematurity as a basis for a motion to quash or as a defence to the application.

Justice Corbett held that the Notice of Appeal is struck out and the appellant is granted leave to deliver a Notice of Application for Judicial Review by November 30, 2022, with the commencement date of the application being the date on which the appeal was commenced, but otherwise without prejudice to any defence that may be raised to the application, including a defence that the application should be dismissed as premature. Justice Corbett also stated that there shall be no costs of these R.2.1 proceedings.

In the same week, Justice W. Matheson J. decided identically to Justice Corbett. In Allo v. Licence Appeal Tribunal et al., 2021 ONSC 6368 (“Allo”) Justice Matheson relied on Penney and confirmed that there is no right of appeal from an interlocutory decision of the LAT. Further, the appellant requested that if the appeal is dismissed on the basis that this court has no jurisdiction, the appeal be converted into an application for judicial review. Justice Matheson agreed to this request but noted that the appellant would face a significant challenge because the application for judicial review would similarly be premature. Justice Matheson dismissed the appeal regarding jurisdiction but allowed the appellant to reconstitute the appeal as an application for judicial review provided that the notice of application is delivered within 10 days, without prejudice to any issues that may be raised in response to the notice of application, including prematurity. If the appellant does deliver a notice of application as set out above, it shall be treated as if delivered at the same time as the notice of appeal.

These decisions provide clarity to insurers and claimants regarding the jurisdiction of the Divisional Court regarding interlocutory orders of the LAT. Further, they highlights the lines between judicial review and appeals from the LAT.   The prematurity issue will still be a significant hurdle for entry to the Divisional Court on anything other than a final order of the LAT.

Aylina Dhanji is an articling student and author of this blog. If you have questions about this decision or a related file, please contact Aylina at [email protected] or Eric Grossman at 416.777.5222