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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Administrative - Interlocutory Orders

In civil litigation an 'interim' and an 'interlocutory' order are different in that an interim order applies until the next party appearance, while an interlocutory order tends to be one that applies procedurally through the balance of the case. In administrative law the terms tend to be applied interchangeably (at least as used in the SPPA 16.1).

. Tamayo v. Licence Appeal Tribunal

In Tamayo v. Licence Appeal Tribunal (Div Court, 2023) the Divisional Court considers an appeal from a tribunal denial of an adjournment, which is an interlocutory administrative order. The court held that it lacked jurisdiction to consider the appeal and dismissed it both as a nullity and under R2.1 (frivolous and vexatious grounds). The case is interesting for the tactical choices that a party faces when dealing with a denial of a tribunal adjournment, including judicial review [para 6] and re-requesting adjournment at the commencement of the tribunal hearing [para 7]:
[1] Justice Corbett confirms the urgent case management teleconference held November 18, 2022.

[2] The appellant filed a notice of appeal from a decision and reconsideration decision of the LAT denying a request for adjournment of a hearing at the LAT scheduled to start November 21, 2022.

[3] The appellant takes the further position that the appeal to this court has the effect of staying the LAT proceedings. That, he argues, is the effect of the stay provisions in the SPPA. Counsel for the LAT argues that there is no jurisdiction in this court to hear the appeal, and thus the notice of appeal is, itself, a nullity, and the LAT could proceed with the hearing as scheduled on November 21, 2022.

[4] On the question of jurisdiction, counsel for the applicant argued that the Divisional Court decision in Penney v. The Cooperators General Insurance Company, 2022 ONSC 3874 leaves the door open for an appeal in exceptional circumstances. I have dealt with that argument in Kahissay v. Intact Insurance, 2022 ONSC 6357: there is no jurisdiction in this court to hear an interlocutory appeal from LAT and that is the holding in Penney. Matheson J. has come to the same conclusion in another recent case in which applicant's counsel was also counsel [Allo v. Licence Appeal Tribunal, 2022 ONSC 6368].

[5] An applicant before the LAT may not obtain reversal of a decision denying an adjournment merely by filing a notice of appeal at the last minute. If this court has not had a reasonable opportunity to deal with the notice of appeal, then, as argued by counsel for LAT, it is open to LAT to conclude that the notice of appeal is a nullity and does not have the effect of staying the LAT proceedings. It is better, however, for this court to rule on the propriety of a notice of appeal filed with this court.

[6] In all the circumstances, this appeal is dismissed pursuant to R. 2.1 for the reasons set out in Penney and Kahissay. This decision is without prejudice to an application for judicial review. I would extend the time for such an application to be brought to December 16, 2022. In so directing, no inference should be drawn that I have ruled on any issues of mootness or prematurity respecting such an application. Also, as discussed in the teleconference, commencing an application for judicial review does not have the effect of staying the proceedings below. To obtain a stay pending hearing of the application for judicial review, the applicant would have to move for a stay. I declined to grant an interim stay and this court will not, in any event, schedule a stay motion prior to the hearing scheduled to commence on November 21, 2022.

[7] As acknowledged by counsel for LAT during the conference, it is open to a party to seek an adjournment from the LAT at the start of the hearing. There are currently no proceedings in this court that would ground such a request, and a proposed or commenced application for judicial review would not ground such a request in the absence of a stay order from this court. This does not preclude other bases for seeking an adjournment, and it would be for the LAT to adjudicate any adjournment request as part of its jurisdiction to control its own process in a manner consistent with principles of procedural fairness.


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