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Administrative - Reconsideration and Appeal Timing. Rao v. Wawanesa Mutual Insurance Company
In Rao v. Wawanesa Mutual Insurance Company (Div Court, 2023) the Divisional Court considers (and allows) a motion to extend time to commence an appeal, here of a LAT SABS decision.
The below quote raises issues that I've written about before, there in the similar RTA context. The issue is what to do when an administrative regime allows for a 'review' (aka 'reconsideration', or 'recon') - but fails to allow an extension of time (so that the 'recon' can be conducted) to commence an appeal. Prudent (and necessarily well-funded) counsel facing such a situation would elect to advance both the recon and the appeal simultaneously (at least where 'questions of law' are concerned), a seemingly avoidable offence against the 'multiplicity of proceedings' prohibition set out in the Courts of Justice Act [s.138]. But this 'solution' is rarely financially available to most litigants, and recommending it disregards the undeniably more serious administrative offence that it poses to the 'access to justice' interest in such areas of law as residential tenancies and MVA-associated income support.
It is much worth noting that this problem is both overtly recognized (and sensibly and directly addressed) in social assistance law where, in the ODSP context [ODSPA, General Reg, s.70(2-3)], the law provides:70(2) If a party has made a request to the Tribunal for a reconsideration of its decision, no party may commence an appeal to the Divisional Court until,
(a) the Tribunal has held the reconsideration and delivered a decision;
(b) the Tribunal has refused to hold a reconsideration; or
(c) the request for the reconsideration has been withdrawn.
70(3) If subsection (2) applies, the notice of appeal with the Divisional Court shall be filed within 30 days after the occurrence referred to in subsection (2), rather than as provided in subsection (1). I have written on this issue in past [quoting from my Residential Tenancy (Ontario) Guide, Ch.15, s.4: 'Reviews and Appeals - When To Choose a Review, an Appeal - or Both?']:In Oladunjoye v. Jonker (Div Ct, 2021) the Divisional Court held that commencing a s.210 RTA appeal while an LTB review application was outstanding was premature. I have a problem with this case, because - unlike the situation with social assistance appeals [eg. ODSPA General Reg s.70] - the RTA has no appeal time-extending provision for when a review (reconsideration) is filed. I have already written on the prudence of filing both appeals and reviews to fully protect a party's rights, a situation which I lament but see no safe solution for. This case had the potential to resolve this problem with a clear statement of principle, but rather it was applied to hurt the tenant's case when they seem - in my mind - to be acting sensibly: ... In this case [in discussion at para.18 and 23 (below)] the court cites a similar practical (and highly sensible) resolution that parties sometimes reach to address this plainly unsensible situation. Parties simply 'wait out' the reconsideration, only commencing an appeal if and when it became necessary. Unfortunately this court viewed this practice as irrelevant as being "... not evidence and at most show(ing) an inconsistent practice.":[18] Counsel for both parties on this motion made submissions about the practice in the personal injury bar regarding when to serve a notice of appeal to the Divisional Court when a reconsideration is also sought at the LAT. There was reference to a practice of serving the notice of appeal within thirty days of the decision that is the subject of a reconsideration request, and, in parallel, seeking reconsideration from the LAT. There was also reference to waiting until after the reconsideration decision was released and then serving the notice of appeal challenging both decisions. As I said at the hearing, while I accept that counsel were trying to be helpful to the Court, these ad hoc submissions are of limited assistance. They are not evidence and at most show an inconsistent practice. In addition, in this case, an extension of time was needed from the LAT before there would be a reconsideration. This is not the more straightforward case of a final merits decision followed by a reconsideration decision.
....
[23] The moving party relies on the decision of this Court in Hordo v. CAA Insurance Company, 2023 ONSC 6774, also arising from a motion for an extension of time to appeal to this Court. It appears that Hordo proceeded on the assumption that the time to appeal began when the LAT released its reconsideration decision. That position was not challenged and there was no discussion about whether or not there was a right of appeal from the reconsideration decision. .... . Oleynik v. Canada (Attorney General)
In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the vexed issue of effect of the filing of a reconsideration and the running of the time limit for filing appeals. While this issue occurs primarily in administrative proceedings, in this court situation the Federal Court of Appeal holds that the filing of a reconsideration does not delay the timeline for filing an appeal:[31] The Attorney General argues that Dr. Oleynik’s Rule 397 motion before the Federal Court did not relieve him of the obligation to timely file a notice of appeal for the First Decision, citing Pharmascience Inc. v. Canada (Minister of Health), 2003 FCA 333 and Sivakumar v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 299, 81 A.C.W.S. (3d) 215 (FCTD). As a result, Dr. Oleynik’s appeal of the First Decision is too late.
[32] I agree.
[33] In my view, bringing a Rule 399 motion similarly does not affect the timeline for instituting an appeal. Had Dr. Oleynik filed an appeal of the First Decision, the Federal Court nonetheless would have had the discretion to entertain his reconsideration motion: Étienne v. Canada (1993), 164 N.R. 318, 45 A.C.W.S. (3d) 813 at 318 (N.R.) (FCA); Musqueam Indian Band v. Canada (Governor in Council), 2004 FC 931 at para. 22; In re motion for reconsideration of the Court’s Order in Peshdary v. AGC (2018), 2020 FC 137 at para. 12.
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