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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Administrative - License Appeal Tribunal

. Warren v. Licence Appeal Tribunal

In Warren v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court considered the current LAT hearing and reconsideration system:
[6] The LAT’s Rules of Procedure provide that an adjudicator may hear reconsideration requests from his or her decisions, consistent with a fair, expeditious and efficient adjudicative process. Rule 18.1 of the LAT’s Rules of Procedure provides that: “The determination of the request for reconsideration shall be heard by written submissions and may be heard by the same Member whose decision is the subject of the request.”

[7] Rule 18.2 of the LAT’s Rules of Procedure provides that the Tribunal shall not make an order granting relief on reconsideration unless one or more of these criteria are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;

(c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

(d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
[8] The LAT's Mission Statement at the time of the decisions, implemented under s. 3(1) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5 (“ATAGAA”), provided that the LAT aims to provide efficient, effective, and timely dispute resolution. This was recently replaced by Tribunals Ontario's cluster-wide Mandate and Mission Statement which similarly provides that the cluster “will deliver administrative justice in a fair, independent, effective and efficient manner.”

Analysis: No Denial of Procedural Fairness

[9] The appellant argues that she was denied procedural fairness when the adjudicator reconsidered his own decision. Procedural fairness requires that a decision be made free of a reasonable apprehension of bias by an impartial decision-maker. The legislative and administrative context is crucial to determining the required content of procedural fairness: Canada (Attorney General) v Mavi, 2011 SCC 30 at para 41. The regulatory scheme described above establishes structural and procedural mechanisms designed to allow the LAT to perform its adjudicative functions in a fair, efficient and expeditious manner. The LAT’s automobile benefits stream is high volume. In 2019-2020, the LAT received almost 15,000 automobile accident benefit appeals.
. Yatar v. TD Insurance Meloche Monnex

In Yatar v. TD Insurance Meloche Monnex (Ont CA, 2022) the Court of Appeal considered the issue of whether, when a statute-limited appeal to 'questions of law' exists [here in LATA 11(6), but the same occurs in RTA 210 and the ODSPA 31(1)], that a party still has judicial review (JR) recourse when there were alleged errors with findings of matters of fact, or matters of fact and law. The Court of Appeal held that the 'questions of law' limitations - as they were a matter of statutory intention, something that Vavilov has re-affirmed respect for - were an intentional restriction in court review. While judicial review is still available where such a limited appeal existed, it was only available as a matter of JR discretion - which the doctrine of Strickland's 'adequate alternative remedy'(AAR) was an central aspect of. In finding AAR, the limited appeal and reconsideration were key 'remedial' factors:
[37] The Divisional Court was correct in concluding that the existence of an adequate alternative remedy was a valid reason not to exercise its discretion to hear and determine a judicial review application. In reaching that conclusion, the Divisional Court properly considered the various factors from Strickland. Those factors directed that result. I mention only a couple of those factors to reinforce the Divisional Court’s conclusion.

[38] First, it is evident from the amendments that the legislature made to the resolution of disputes over SABS that it intended to greatly restrict resort to the courts for the determination of those disputes. One can draw that conclusion from the fact that the legislature limited the statutory right of appeal to questions of law only. The result is that issues of fact or mixed fact and law are presumptively left to the Tribunal to determine, subject to the right to request a reconsideration. In this case, as the Divisional Court pointed out, there were no questions of law raised.

[39] Having said that, I recognize that the appellant still has the remedy of an application for judicial review available to her. That availability is clear from a number of sources, not the least of which is s. 280(3) of the Insurance Act. The section reads:
No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review.
[40] Nothing turns on the decision of the legislature to include a reference to judicial review in this section. The Judicial Review Procedure Act, R.S.O. 1990, c. J.1, already provides, in s. 2(1), that a “court may, despite any right of appeal, by order grant any relief” by way of judicial review. Further, the case law also makes it clear that “legislatures cannot shield administrative decision making from curial scrutiny entirely”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 24. Similarly, “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or aspects of decisions, to which the appeal mechanism does not apply”: Vavilov, at para. 52.

[41] The reference in s. 280(3) does not change the analysis nor does it change the fact that judicial review is a discretionary remedy. As Cromwell J. said in Strickland, at para. 37:
Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief. [Citation omitted.]
[42] In my view, when the Divisional Court said that it would only exercise its discretion to hear and determine an application for judicial review in exceptional circumstances, what it was attempting to communicate is that it would only be in rare cases that the remedy of judicial review would be exercised, given the legislated scheme for the resolution of disputes over SABS. Put another way, the Divisional Court was recognizing that there would have to be something unusual about the case to warrant resort to the discretionary remedy of judicial review, given the legislative scheme. That legislative scheme includes the right to reconsideration of the Tribunal’s preliminary decision and the statutory right of appeal from decisions of the Tribunal on questions of law.

[43] The decision of the Divisional Court recognizes the legislative intent to limit access to the courts regarding these disputes. This analysis is consistent with the principles regarding the centrality of legislative intent expressed in Vavilov. It also recognizes certain realities regarding the remedy of judicial review. One is the fact that judicial review is a discretionary remedy. Another is that a court is entitled to “refuse to grant any relief on an application for judicial review”: Judicial Review Procedure Act, s. 2(5). Yet another is that the existence of an adequate alternative remedy is, itself, a reason that justifies the exercise of the discretion to refuse to hear a judicial review application: Strickland, at para. 42.

[44] On that point, I do not accept the argument put forward by the appellant that the Divisional Court conflated its discretion to refuse relief with its standard of review analysis and erred by refusing relief without first considering the merits of the application for judicial review. The court’s discretion with respect to judicial review applies both to its decision to undertake review and to grant relief: see, e.g., Strickland, at para. 42; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 30.

[45] I also do not accept the argument advanced by the intervener, the Income Security Advocacy Centre, that the Divisional Court’s analysis of the legislative intent was “narrow and incomplete”. To the contrary, the Divisional Court correctly interpreted the legislative scheme as evincing an intention to limit recourse to the courts. It is inconsistent with the legislature’s decision to limit the right of appeal to questions of law alone to then hold that the remedy of judicial review is all‑encompassing. Rather, I agree with the Divisional Court’s approach, which essentially concluded that judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case. What constitutes such a rare case is for the Divisional Court to determine on a case-by-case basis.

[46] Finally, I do not accept the thrust of the arguments advanced by the interveners, the Income Security Advocacy Centre and the Advocacy Centre for Tenants Ontario, that there must be a wide-ranging right to judicial review in cases such as this, or in cases involving tenants or social assistance recipients. That argument ignores the fact that the legislature has the right, through legislation, to restrict appeal rights. As the intervener, the Attorney General of Ontario, pointed out in its factum, “more checks on decision makers does not necessarily mean more justice.” It also ignores the salient fact that the remedy of judicial review is a discretionary one.

[47] Removing the requirement for exceptional circumstances does not change the rationale or result of the Divisional Court’s decision. It remains true that it will only be a rare case where the remedy of judicial review will be properly resorted to, given the alternative remedies that are available to an unsuccessful party. Those alternative remedies will be, in the vast majority of cases, “adequate in all the circumstances to address the applicant’s grievance”: Strickland, at para. 42.

[48] On this point, I accept that the Divisional Court’s statement, in the penultimate paragraph of its reasons, that judicial review is only available “if at all” in exceptional circumstances, was also unfortunate and unnecessary. It is clear, both from the legislative sources and from case law to which I have referred above, that judicial review is always available. The pertinent question is whether it is appropriate, in any given case, to exercise the discretion to hear and determine that judicial review.
. Yatar v. TD Insurance Meloche Monnex

In Yatar v. TD Insurance Meloche Monnex (Ont CA, 2022) the Court of Appeal reviewed some procedural aspects of the LATA regime as it bears on MVA insurance SABS matters:
[29] Although the statutory appeal processes, and their amendments, are described in detail in the Divisional Court’s reasons, they bear repeating, at least in summary form.

[30] Before April 2016, disputes about an insured person’s entitlement to SABS, including the amount to which they were entitled, were resolved in accordance with sections 280 to 283 of the Insurance Act, and the SABS, which provided that SABS disputes could be resolved by arbitration or court proceedings. At the time, the FSCO was the administrative body involved in SABS dispute resolution. Mediation of SABS claims through the FSCO was the mandatory first step in dispute resolution. Following a mediation, the mediator was required to report to the parties. After a failed mediation, parties could begin an action in the courts to determine SABS claims, or could proceed to arbitration, either through the FSCO or in a private arbitration.

[31] The limitation period for beginning a proceeding was two years from the date of the insurer’s refusal to pay the benefit claimed, but, if the parties pursued mediation, both the Insurance Act and the SABS extended the limitation period to 90 days after the mediator’s report to the parties: Insurance Act, s. 281.1(2)(b); SABS, s. 56(2).

[32] This dispute resolution system was significantly changed, effective April 1, 2016. This included the elimination of FSCO mandatory mediations, the elimination of court actions, and the elimination of the FSCO’s role in arbitrations. The Insurance Act was amended, also effective April 1, 2016, to provide the Tribunal with exclusive jurisdiction at first instance over the resolution of disputes in respect of an insured person’s entitlement to SABS or the amount of SABS to which an insured person is entitled: s. 280.

[33] The legislature also amended the Licence Appeal Tribunal Act, 1999, effective April 1, 2016, by adding s. 11(6), which reads:
An appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only.
[34] Also on April 1, 2016, the Tribunal adopted their Rules of Practice and Procedure that provide for limited internal reconsideration of Tribunal decisions. These Rules have since been replaced and amended to allow the original decision-maker to also decide the reconsideration request: Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), r. 18.1.
. Singh v. Wawanesa Mutual Insurance Company

In Singh v. Wawanesa Mutual Insurance Company (Div Court, 2022) the Divisional Court considered the LAT system in the context of their SABS jurisdiction:
(1) The LAT Process

[42] The LAT is an adjudicative body[1] that receives its powers to hold hearings and perform duties assigned to it by or under any Act or regulation pursuant to s. 3 of the Act. The LAT has control over its own process and is a specialized expert tribunal.

[43] Pursuant to s. 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the LAT has control over process meaning that it has the power to determine its own procedures and practices. Furthermore, s. 23 empowers the LAT to make orders or give directions that prevent abuse of process. Pursuant to s. 23(2), “[a] tribunal may reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding”. The LAT also has power to make its own rules establishing procedures for hearings under s. 6 of the Act. The LAT’s process is set out in its Common Rules of Practice & Procedure[2].

[44] Section 280 of the Insurance Act grants the LAT exclusive jurisdiction over disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. To that extent, s. 280(3) also deprives the Superior Court of jurisdiction—an insured person is precluded from commencing an action for statutory accident benefits in the Superior Court: see Yang v. Co-operators General Insurance Company, 2022 ONCA 178, at para. 4.

[45] Persons affected by the LAT’s decisions may request reconsideration in accordance with r. 18 of the LAT Rules. The LAT’s reconsideration rule is authorized by s. 21.2 of the Statutory Power Procedures Act, which allows a tribunal to review its decision if its rules deal with the matter.
. Fratarcangeli v. North Blenheim Mutual Insurance Company

In Fratarcangeli v. North Blenheim Mutual Insurance Company (Div Ct, 2021) the Divisional Court summarized the now (since 2016) appellate jurisdiction of the Licence Appeal Tribunal over auto insurance SABS matters:
Jurisdiction under s. 7 of the LAT Act

[5] The LAT is an administrative tribunal created pursuant to the LAT Act. The appeals before us are governed by ss. 11(1) and (6) of the LAT Act which state as follows:
(1) Subject to subsections (2) to (6), a party to a proceeding before the Tribunal relating to a matter under any of the following Acts may appeal from its decision or order to the Divisional Court in accordance with the rules of court:


Insurance Act

(6) An appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only.
[6] Prior to April 1, 2016, the Financial Services Commission of Ontario (“FSCO”) was empowered to resolve SABS disputes, through mediation and then arbitration. Insured persons also had the option to commence a court proceeding rather than to arbitrate through FSCO.

[7] On April 1, 2016, the LAT assumed jurisdiction under the Insurance Act, R.S.O. 1990, c. I.8, to adjudicate automobile accident benefits disputes. The Insurance Act and the SABS codify Ontario’s no-fault accident benefits regime. Pursuant to s. 268(1) of the Insurance Act, every automobile insurance policy in Ontario is deemed to include the benefits provided in the SABS. The LAT has exclusive jurisdiction under s. 280 of the Insurance Act to resolve any disputes “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.”

[8] Section 56 of the SABS prescribes a two-year time limit for bringing applications, and reads as follows:
An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
[9] Section 7 of the LAT Act states:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or under any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying the extension and for granting relief, it may:
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time.
. Fratarcangeli v. North Blenheim Mutual Insurance Company

In Fratarcangeli v. North Blenheim Mutual Insurance Company (Div Ct, 2020) the Divisional Court held that the License Appeal Tribunal could (and should) be a party on an appeal:
[1] These three matters were scheduled to be heard consecutively: the first two (North Blenheim and Royal & Sun Alliance) on December 8, 2020 and the third (Sheway) on December 9, 2020.

[2] They raise the same preliminary issue being whether s. 7 of the Licence Appeal Tribunal Act (S.O. 1999, c. 12 Sched. G) (the “Act”) applies such that the Licence Appeal Tribunal (“LAT”) has the jurisdiction to extend the two-year time limit set to bring an application to the LAT to resolve a dispute in respect of the insured person’s entitlement to, or the amount of, statutory benefits under the Statutory Accident Benefits Schedule (O. Reg. 34/10).

[3] At the outset of the proceeding counsel were asked and advised the Court that the LAT had indicated that it did not intend to appear and make representations at the hearing of these proceedings.

[4] The LAT has made conflicting decisions regarding the issue of its jurisdiction. In some cases, it has assumed jurisdiction (the issue was not raised). In the Sheway case, it found it did not have the jurisdiction to extend the time limit of concern. Jurisdiction is one area where administrative tribunals are, generally, permitted to appear in appeals taken from their decisions. They have a particular understanding of their purpose and responsibilities, the parameters within which they function and the legislation, regulations and rules that govern their actions.

[5] We think it important that the LAT appear to assist the Court in this matter. It would be unfortunate if the Court were to make a decision which, in the absence of this assistance, through its lack of appreciation of the circumstances and the LAT’s understanding of the applicable legislation, regulations and rules, would unnecessarily cause difficulties that might otherwise be avoided.


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