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Appeals Of Tribunal Interlocutory Orders are PrematurePrematurity, in the appeal context, mostly revolves around appealing interlocutory (preliminary) orders. Interlocutory orders in the Superior Court require leave to appeal to the Divisional Court [CJA s.19(1)(b)], and in most tribunal hearings (administrative law) there is a general rule that interlocutory orders cannot be appealed - ie. parties must complete the hearing and then appeal the final order.
. Grewal v. Peel Mutual Insurance Company
In Grewal v. Peel Mutual Insurance Company (Div Court, 2022) the Divisional Court declined jurisdiction on grounds of prematurity where the appeal was with respect to an interlocutory order, here of the LAT:[3] An appeal lies to this Court pursuant to s. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. The appeal must be with respect to a final decision or order of the Tribunal, and it must raise a question of law (Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (Div. Ct.) at para. 26).
[4] The ruling of the Tribunal under appeal was not a final decision or order. In Delic v. Enrietti-Zoppo, 2022 ONSC 1627, the Divisional Court stated (at para. 7),An order is final if it disposes finally of a claim. An order is not final just because it is one of substance. Where the effect of an order is to continue the inquiry, it is not final. [5] The present proceeding is still in the early stages, and there has been no ruling on the merits of the application for accident benefits. All that the Tribunal has done was to rule on the availability of a possible remedy of punitive damages. In contrast, in Higashi v. Western Assurance Company, 2020 ONSC 7616 (Div. Ct.), the Court heard an appeal respecting an application for income replacement benefits, as that issue had been finally determined, even though the application respecting catastrophic impairment had not yet been determined.
[6] Another panel of this Court explained why an appeal should only follow a final decision of an administrative tribunal in Law Society of Upper Canada v. Piersanti, 2018 ONSC 640 (at para. 16):In regulatory proceedings, fragmentation and/or bifurcation of issues and piecemeal court proceedings are discouraged. Rather the preferred course is to allow matters to run their full course before the tribunal and then consider all the legal issues arising from the proceeding, following its conclusion. In conduct proceedings that involves a finding of professional misconduct or conduct unbecoming. [7] The same policy considerations apply with respect to accident benefit applications before the LAT. It is preferable to avoid the fragmentation and delay in the administrative process that would result if appeals were available before there has been a final determination of a claim.
[8] While the appellant cited a number of cases to this Court which have determined what is a final or an interlocutory order for purposes of the appeal routes in civil proceedings, the Divisional Court in Piersanti explained why those cases, and that distinction, are inappropriate in the context of regulatory proceedings (at paras. 14-16). See, also, Coughlin v. Director, Ontario Disability Support Program, 2021 ONSC 1236 (Div. Ct.) at paras. 7 and 9-11.
[9] This appeal is therefore premature. The parties should complete the proceeding before the Tribunal respecting the appellant’s application, which has been on hold since the decision was made over a year ago. If she decides to appeal the Tribunal’s final decision on the merits, the issue of the availability of punitive damages can be raised as an issue before the panel hearing the appeal. . Penney v. The Co-operators General Insurance Company
In Penney v. The Co-operators General Insurance Company (Div Court, 2022) the Divisional Court considered (extensively) when an appeal from an interlocutory tribunal order to it was premature:[6] The decision under appeal is interlocutory, as it does not finally dispose of the appellant’s accident benefits application, nor does it dispose of any substantive issue or claim in that proceeding. The Co-operators and the Tribunal took the position that there is no right to appeal an interlocutory decision, relying on a large number of cases that have held that the language in s. 11 of the LAT Act and similar language in other Acts permit an appeal only from a final decision or order.
[7] The appellant relied on the decision of the Divisional Court in The Personal Insurance Company v. Jia, 2020 ONSC 6361, where the Court dealt with jurisdiction to hear an appeal of an interlocutory decision as follows (at para. 15):This court will not ordinarily hear an appeal from interlocutory decisions of LAT, unless the consequences of the decision cannot be rectified on appeal from a final decision. We would exercise our discretion to hear an appeal from the conflict decision, because it is evasive of appeal and it is potentially a matter of general practice important in proceedings before LAT. No legal authority is cited in support of this statement. However, the appellant argued that this panel is bound by the decision, and it should exercise its discretion to hear the appeal, as the panel did in Jia.
Analysis
[8] It is important to emphasize that the Court, in this case, is dealing with an appeal, not a judicial review. The authority to hear an appeal is found in the governing legislation. Determining the scope of the right to appeal requires the Court to engage in an exercise of statutory interpretation in accordance with the modern principle of statutory interpretation, considering the text of the statute, the context, and the purpose and policy behind the statute.
[9] The appellant argues that the wording of s. 11 permits an appeal from an interlocutory decision, because the Legislature has not specified that the appeal is only from a final decision. She relies on an 1879 decision of the Supreme Court of Canada in which that Court interpreted the provisions then governing appeals to the Supreme Court (Danjou v. Marquis, 1879 CanLII 25). This decision is of no assistance, as it deals with the particular language and structure of another Act. Needless to say, it did not apply the modern approach to statutory interpretation, nor does it address any principles of administrative law.
[10] More recent jurisprudence in Ontario has generally interpreted legislation conferring a right to appeal a decision of an administrative tribunal as conferring a right to appeal only a final decision, absent clear language indicating that there is a right to appeal an interlocutory decision. The leading case remains Roosma v. Ford Motor Co. of Canada Ltd., 1988 CanLII 5633 (Div. Ct.). At the time that case was decided, the Ontario Human Rights Code provided a right of appeal from a decision of a board of inquiry. The language was similar to that found in s. 11(1) of the LAT Act: “Any party to a proceeding before a board of inquiry may appeal from a decision or order of the board to the Divisional Court in accordance with the rules of court.”
[11] The Court in Roosma considered the text of the appeal provision, its context in the Code, and the policy implications of interpreting the provision to allow appeals of interlocutory orders. Then, as now, an appeal of a decision of an administrative tribunal results in an automatic stay of the proceeding, unless legislation provides otherwise or the appellate body lifts the stay (see s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22). The Court in Roosma was concerned about the consequent delay in the administrative proceedings if interlocutory decisions could be appealed. Such appeals would undermine the policy objective of expeditious resolution of disputes through administrative tribunals. At para. 30, Reid J. concluded:In my opinion, the reasonable inference based on general premises, on explicit provisions of the Code setting time-limits, and investing the term “orders” with a necessity of finality, is that the legislature did not intend the proceedings of boards of inquiry to be unduly impeded, which would be the inevitable result of the interpretation proposed by the union. Thus, the only reasonable interpretation of s. 41(1) is, in my opinion, that only final decisions and orders may be appealed. The Court observed, however, that judicial review might be available to review an interlocutory decision in an appropriate case.
[12] The appellant suggests that Roosma is an old case and deals with a different tribunal and context from the LAT when it is determining accident benefits disputes. However, the weight of the case law in Ontario has been to adopt Roosma in a variety of regulatory settings. For example, in 2008, the Divisional Court followed Roosma in Stockfish v. Ontario (Motor Vehicle Dealers Act, Registrar), 2008 CanLII 25725. There the Court was dealing with an appeal of an interlocutory decision of the Licence Appeal Tribunal pursuant to s. 11 of the LAT Act. The Court followed Roosma because of the similarity in the appeal provisions of the two statutes, as well as s. 10 of the LAT Act that suggested an appeal was from a final decision.
[13] There have been numerous cases in Ontario which have reached a similar result with respect to the appeal provisions in other statutes governing a wide range of administrative tribunals, including the Landlord and Tenant Board, the Criminal Injuries Compensation Board, the Social Benefits Tribunal and professional disciplinary bodies. The Divisional Court summarized that jurisprudence in a recent case dealing with appeals from the Landlord and Tenant Board, Delic v. Enrietti-Zoppo, 2022 ONSC 1627 at para. 11, citing the case law in a footnote: Jurisprudence in this court with respect to similar provisions for statutory appeals from other tribunals has consistently held that in the absence of an explicit right of appeal from an interlocutory decision, only a final order of a tribunal can be appealed. [1]
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[1] Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON SCDC), 66 OR (2d) 18 (Div. Ct.); Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 (Div. Ct.), Stockfish v. Ontario (Motor Vehicle Dealers Act, Registrar), [2008] O.J. No. 2052 (Div. Ct.), Canadian Union of Public Employees (CUPE) v. Ontario Hospital Assn., 1991 CarswellOnt 914 (Div. Ct.), McCann v. Ontario (Police Services Act Board of Inquiry), 1994 CarswellOnt 894 (Div. Ct.), Butterworth v. College of Veterinarians of Ontario, [2001] O.J. No. 5265 (Div. Ct.), Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.), Ibrahim v. Ontario College of Pharmacists, 2010 ONSC 5293, rev’d on other grounds 2011 ONSC 99 at para. 4 (Div. Ct.), Blew v. Ontario College of Teachers, 2016 ONSC 8053 at paras. 6-11 (Div. Ct.), Free v. County of Norfolk and Dietrich Engineering Limited, 2017 ONSC 909 at para. 3 (Div. Ct.), Coughlin v. Director, Ontario Disability Support Program, 2021 ONSC 1236 (Div. Ct.). [14] I note that s. 11(1) refers to an appeal of “its” decision to the LAT. This suggests that an appeal may be brought with respect to a final decision. However, it is noteworthy that in Sazant, the Divisional Court held that the wording “any decision” in appeals from the Criminal Injuries Compensation Board should be interpreted as meaning a final decision (Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 at para. 37).
[15] That brings me to some recent cases in the Divisional Court where the Court has stated that while there is normally no right to appeal an interlocutory decision of the LAT, the Court has discretion to hear an interlocutory appeal. None of these cases refers to Stockfish, or to the limits of the Court’s jurisdiction pursuant to s. 11(1) because of the express language of the provision. With respect to my colleagues who sat on these cases, it appears to me that they have imported principles applying in judicial review applications to the interpretation of the appeal provision in the LAT Act. I would not follow them, as I believe they erred in failing to give effect to the wording of s. 11(1) and the longstanding jurisprudence, and they have not justified their approach in departing from the language and jurisprudence.
[16] Before I review these cases, it is important to draw a distinction between appeals and judicial reviews. As I said earlier, an appeal is a creature of statute, and the appellate body’s jurisdiction is limited by the legislation. Judicial review, in contrast, is a common law remedy. Relief is discretionary, and the courts have developed a doctrine of prematurity whereby they refuse to review interlocutory decisions of administrative tribunals unless there are exceptional circumstances (see, for example, Sazant at paras. 40-42).
[17] I now turn to the recent cases involving LAT appeals. In Security National Insurance Company v. Kumar, 2018 ONSC 3556, this Court heard an appeal of an interlocutory order where both parties agreed that the appeal was not premature, because the preliminary issue was essentially the only issue in dispute between the parties. In finding that the “court does, at least on occasion, hear appeals from tribunals on specific preliminary issues that do not constitute final determination on the merits”, the Court relied on the following cases (at para. 8): Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986; Security National Insurance Company v. Hodges, 2014 ONSC 3627 and Guarantee Company of North America v. Dong Do, 2015 ONSC 1891.
[18] It is important to note that these three cases were applications for judicial review from decisions of the Financial Services Commission of Ontario (“FSCO”), not appeals to the Divisional Court. Prior to April 1, 2016, automobile accident benefit disputes were adjudicated at FSCO, where there was no statutory right of appeal, only judicial review. These judicial reviews of FSCO decisions do not address or assist in determining whether an interlocutory decision may be appealed under s. 11(1) of the LAT Act. Only Certas discusses the doctrine of prematurity, doing so in the context of judicial review of an interlocutory decision.
[19] The next case to consider is Taylor v. Aviva Insurance Canada Inc., 2018 ONSC 4472. In that case, the Divisional Court considered whether an appeal and a request for reconsideration before the LAT could proceed at the same time. The Court was not asked to determine whether it had the jurisdiction to hear an interlocutory appeal pursuant to s. 11(1). However, the Court stated at para. 19:This court is reluctant to hear appeals from interim or interlocutory orders of administrative decision makers for the same reason that it is reluctant to hear judicial review proceedings before the administrative decision-making process has ended. Such appeals fragment the administrative proceeding and increase costs. Accordingly, courts have interpreted language that grants an appeal from a “decision or order” of a board or tribunal as limited to an appeal of a final order (see, for example, Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 4851 (ON SC), 66 O.R. (2d) 18 (Div. Ct.), at para. 26; and Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819, 285 O.A.C. 218 (Div. Ct.), at paras. 72-73). If a proceeding is “fatally flawed”, an interim or interlocutory decision might be challenged. However, at such a hearing, prematurity may still be raised by the opposing party, and the court may refuse to hear the matter (see, for example, Deutsche Bank Securities Limited v. Ontario Securities Commission, 2012 ONSC 1576, 295 O.A.C. 1 (Div. Ct.)). [20] It is important to note that the Court refers to Deutsche Bank as an example of a challenge to an interlocutory decision where prematurity was an issue. Deutsche Bank was an application for judicial review, not an appeal, and it does not address the authority of the Court to hear an interlocutory appeal.
[21] That brings me to Traders General Insurance Company v. Rumball, 2019 ONSC 1412, where the Court held that an appeal of an interlocutory LAT decision was premature. However, the Court relied on Taylor, above, for the following proposition: “the Divisional Court confirmed yet again that a right of appeal from an administrative tribunal, which in that case as here was the LAT, will generally be interpreted as a right to appeal a final decision, and that this Court will rarely entertain appeals from interim or interlocutory decisions” (at para. 19). Again, the cases relied on in Rumball do not address whether the language of s. 11(1) permits an appeal of an interlocutory decision.
[22] I return now to the 2020 decision in Jia, where the Divisional Court again stated that the Court has a discretion to hear an appeal of an interlocutory decision. As I stated earlier, no authority was cited for this proposition.
[23] In Blew v. Ontario College of Teachers, 2016 ONSC 8053, Dambrot J. refused to follow an earlier Divisional Court decision that dealt with an interlocutory appeal of a decision of a discipline committee of the College. He noted that the Court had not considered its jurisdiction and its decision was inconsistent with other cases and “clearly per incuriam” (at para. 11). For similar reasons, I decline to follow Jia. The panel in that case did not engage with the clear language of s. 11 of the Act and the longstanding jurisprudence holding that this Court does not have jurisdiction to hear an appeal of an interlocutory decision or order absent clear statutory language. In my view, Roosma, Stockfish and similar cases in other regulatory regimes remain good law. Section 11 does not confer a discretion on the Court to hear interlocutory appeals.
[24] The appellant also refers to Micanovic v. Intact Insurance, 2022 ONSC 1566, where the Divisional Court again held that it had the discretion to hear an appeal of an interlocutory decision in exceptional circumstances. The Court relied on Cura v. Aviva Insurance Canada, 2021 ONSC 2290 at para. 30 for this proposition (see para. 30 of Micanovic). However, once again, Cura was an application for judicial review, not an appeal, and the case said nothing about the interpretation of s. 11 of the LAT Act. Micanovic also referred to Taylor (at para. 33), which, as I have noted, did not directly address the interpretation of s. 11.
[25] The result reached in the present appeal, which focuses on the words used by the Legislature, makes good sense in the administrative law context, where the objective is to provide efficient and timely adjudication through administrative tribunals. As Robert W. Macaulay, James L.H. Sprague, Lorne Sossin, have noted in Practice and Procedure Before Administrative Tribunals, (at § 37:12 (accessed on ProView)):A right of appeal exists only to the extent that a legislature creates it. Unlike the right of judicial review there is no constitutional right to appeal nor an authority in a court to create such a process. Approaching a statutory right of appeal as if the Court had the discretion to hear the appeal or not depending on its view of the prematurity of the review appears to read such rights as implicitly being only a conditional [sic] and requiring the leave of the court. When legislatures wish to make a right of appeal conditional the standard approach is to say so explicitly. Otherwise, a court does not have the discretion to refuse to entertain an appeal depending on its judgment of the value of proceeding with it at that time. Treating a simple right of appeal from “decisions” as precluding appeals from interim or interlocutory decisions except in exceptional cases appears, problematically, to treat a statutory right of appeal as being discretionary and resting in the judgment of the court to hear. [26] Given the language of s. 11(1) and (6) of the LAT Act, read in the context of the entire statute and the objective of preventing fragmentation of and delay in administrative proceedings, I conclude that this Court has no jurisdiction to hear an appeal from an interlocutory decision of the LAT. In my view, this conclusion is consistent with the instruction from the Supreme Court of Canada in Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 that the courts should respect the Legislature’s decisions with respect to institutional design (at paras. 24, 36). Here, the Legislature chose not to confer a right to appeal interlocutory decisions of the LAT to the Divisional Court.
[27] I note, before closing, that a party may have the option of seeking judicial review of an interlocutory decision in an appropriate case, as the judges in Blew and Sazant, above, discussed. The applicant will likely have to meet an argument of prematurity and show exceptional circumstances if it wishes to be heard. However, in this case, there was no request to turn this appeal into an application for judicial review. . Micanovic v. Intact Insurance
In Micanovic v. Intact Insurance (Div Ct, 2022) the Divisional Court considered the doctrine of prematurity of an appeal brought from a tribunal's interlocutory order, and exceptions:Is the Appeal Premature?
[30] The Order is an interlocutory order rather than a final order resolving the Appellant’s claim for housekeeping benefits. The Respondent submits that this Court should decline to hear this appeal on the grounds of prematurity and an absence of exceptional circumstances in reliance on the well-established principles most recently articulated in Cura v. Aviva Insurance Canada, 2021 ONSC 2290 at para. 30:It is a fundamental principle of our legal system as it relates to both litigation before the LAT and similar tribunals, as well as trials in our court system, that decisions made during the course of a proceeding are not subject to judicial review or an appeal until such time as the process itself is complete. This principle is well understood and reflected in the decision of the Court of Appeal in Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 69, where the Court of Appeal adopted the rationale for this principle set forth by Stratas J.A. in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, as follows:Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a review in court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [31] I do not agree that we should decline to hear this case for the following reasons.
[32] I accept that, as set out in Cura, it is a fundamental principle in our legal system that, absent exceptional circumstances, courts should not interfere with ongoing administrative processes, including an arbitration, until after they are completed or until available, effective remedies are exhausted.
[33] However, the case law also provides that an interim order can be challenged if it is “fatally flawed”: see Taylor v. Aviva Canada Inc., 2018 ONSC 4472 at para. 19. In this case, as set out below, the Adjudicator made three errors of law. Collectively, these three errors of law render the Order “fatally flawed.” I propose to address these three errors of law and then to address the exceptional circumstances in this case in greater detail. . Awada v. Allstate
In Awada v. Allstate (Div Ct, 2021) the Divisional Court held that an appeal from an interlocutory order of an administrative tribunal (the LAT) was premature. The appellant argued that an exception applied. The court noted several other options for arguing the appealed issue [para 14]:[7] “[A]bsent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until effective remedies are exhausted” Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, per Stratas J.A.
[8] The classic statement of the courts’ reluctance to intervene in the course of administrative proceedings is found in Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 CanLII 3430 (ON SCDC), 11 OR (3d) 798 at 800:For some time now, the Divisional Court has … taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion…. [9] The principle was stated by this court in 1993, and it had been followed “[f]or some time now” then, nearly thirty years ago. It is followed just as scrupulously today and, with active case management being instituted by more and more administrative tribunals, the practical importance of the principle has in no way diminished.
[10] The appellant argues that the order under appeal fits within the “exceptional circumstances” category because it is “fatally flawed” and is procedurally unfair. In the result, a full hearing could unfold before the Tribunal that could be avoided if the appeal is successful: Higashi v. Western Assurance Co., [2020] OJ No. 5395; Certas Direct Insurance Co, v. Gonsalves, 2011 ONSC 3986.
[11] I do not accept these submissions. This is an ordinary interlocutory production order. The appellant notes that scheduling orders, as currently structured, could lead to a situation where the appellant is unable to respond to issues raised by the respondent arising from the documents ordered disclosed. I do not agree that this is an “exceptional circumstance”. If such a situation should arise, the current orders provide that the appellant can seek leave from the Hearing Adjudicator to provide additional materials. It remains the Hearing Adjudicator’s task to ensure fairness for both sides as the case moves forward, and an appeal will be available to this court if, at the end of the process, a party argues it was not treated fairly. This case is not like Gonsalves, where the impugned order would necessarily lead to unfairness at the hearing. In the case at bar, the argument is premised on the possibility of procedural unfairness, not the inevitability of substantive unfairness found in Gonsalves. See also Ontario (Liquor Control Board) v. Lifford Wine Agencies Ltd. (2005), 2005 CanLII 25179 (ON CA), 76 OR (3d) 401 (CA); Aon Inc. v. Towerhill Developments Inc., [2010] O.J. No. 2698 (Div. Ct.). . Price et al v. Smith & Wesson Corp.
In Price et al v. Smith & Wesson Corp. (Div Ct, 2021) the Divisional Court considered whether the administrative doctrine of prematurity applies to civil court proceedings, finding that in this case the matter was best dealt with under stay principles (ie. RJR Macdonald preliminary injunction principles):[23] Both parties have also put forward considerable law on the prematurity principles that this Court applies to appeals and judicial review applications arising from administrative tribunal decisions. The plaintiffs submit that the motion for leave to appeal is premature. The defendant submits that this is one of those exceptional cases that should proceed.
[24] This body of administrative law does not directly apply to this case. This case is civil litigation under the Courts of Justice Act, modified to some extent by the CPA. The question of when this Court will hear an appeal from an interlocutory decision is decided by applying the test for leave to appeal in Rule 62.02(4). That is the motion that the plaintiffs seek to stay.
[25] There is certainly some overlap between the considerations that arise in the prematurity law put forward by the parties and the principles that apply to this motion. However, the request for a stay of proceedings is more properly framed under Rule 63.02(1)(b) and s. 106 of the Courts of Justice Act, which give the Court the jurisdiction to stay the proceedings in this Court on such terms as are just. As a general matter, the injunction test applies, as set out in RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, specifically (1) whether there is a serious issue to be decided; (2) whether to proceed would result in irreparable harm; and, (3) whether the balance of convenience favours a stay. . Millar v. The Cooperators General Insurance Company
In Millar v. The Cooperators General Insurance Company (Div Ct, 2021) the Divisional Court held that an interlocutory appeal of a preliminary issue decided by the LAT, was premature:[11] Cooperators submits that the most just and efficient way of proceeding would be to hear the appeal now rather than awaiting a hearing on the merits. It argues that a hearing on the merits will be unnecessary if this appeal decides that Mr. Millar is a dependant and therefore an insured person.
[12] Cooperators relies on the decision of the Divisional Court in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (CanLII). In Porter, the court heard an appeal from a preliminary decision on the question of whether there had been an “accident.” Cooperators argues that this is authority for the proposition that an appeal of a preliminary question such as whether there has been an “accident” is not premature.
[13] We disagree. In Porter the panel decided to hear the appeal from the preliminary question in the context of a case in which there were no other matters to be determined on the application for benefits. This is unlike the case at bar. There is a well-developed line of jurisprudence from this court that it will generally decline to hear appeals from preliminary decisions where other issues are yet to be decided by the tribunal: See Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (CanLII); Allstate Insurance Company v. Billard, 2019 ONSC 6265 (CanLII); Taylor v. Aviva Canada Inc., 2018 ONSC 4472.
[14] The repeatedly stated policy reasons behind avoiding premature appeals in administrative proceedings include avoiding inefficiency, expense and allowing administrative processes to proceed to a conclusion on all issues. An appeal may not be necessary after those steps have been taken. Any appeal will have the benefit of a full procedural and evidentiary record. There will be fewer delays in arriving at a result, caused by pausing the proceedings for appeals or judicial reviews. Even where the parties may agree an appeal should be heard, as Favreau, J. noted in Rumball, “the Court is entitled to guard against the inefficiency, extra expense and waste of judicial resources resulting from fragmented administrative proceedings.” . Bell Technical Solutions v. Unifor, Local 1996-O
In Bell Technical Solutions v. Unifor, Local 1996-O (Div Ct, 2021) the Divisional Court considers, and dismisses, a novel argument on an exception to the prematurity principle that prohibits appeal or judicial review of interlocutory tribunal decisions:[8] In the administrative law context, the courts, and this court in particular, have consistently applied the doctrine of prematurity, both in appeals and applications for judicial review, and refused to review preliminary decisions of administrative tribunals in order to prevent fragmentation of the administrative process and delay absent exceptional circumstances.
[9] The applicant argues that this application is exceptional because it deals with what it calls “a true issue of jurisdiction involving the jurisdictional line between two independent tribunals that is not dependent upon the evidence.” While judicial support for this approach exists, it has been overtaken by more recent jurisprudence. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 67, the Court of Appeal adopted the view of Stratas J.A. in C.B. Powell Ltd. V. Canada (Border Services Agency), 2010 FCA 61, that the use of the label “jurisdiction” to justify judicial interference with ongoing administrative decision-making processes is no longer appropriate. The Court further stated that even a true question of jurisdiction is not, of itself, an exceptional circumstance justifying judicial review before judicial proceedings are completed.
[10] Counsel for the applicant argued that the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 overtakes Volochay by implication. At para. 63 of Vavilov, the Court stated that the rule of law requires that the correctness standard be applied in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies. This, she says, creates an exception to the usual practice of dismissing premature applications for judicial review. Even assuming that correctness is the standard of review on this issue in this case, a question we do not reach, I do not agree. First, this statement in Vavilov was nothing new. The same was said in Dunsmuir v. New Brunswick, 2008 SCC 9, and several earlier decisions of the Supreme Court of Canada. And second, the argument conflates the need for a consistent understanding of the boundary between administrative decision makers provided by review on the standard of correctness, and the asserted need to fragment administrative proceedings in order to have an early determination of that question. There is no such need.
[11] Further, there is no reason to apply the doctrine of prematurity differently on review of administrative decisions on a correctness standard, typically in statutory appeals from administrative decisions, than on review on a reasonableness standard. The jurisprudence of this court is clear on the issue. For a recent example, see Coughlin v. Ontario Disability Program (Director), 2021 ONSC 1236 at para. 8.
[12] We see no other exceptional circumstance in this case that would justify proceeding with a judicial review application in this matter prior to the completion of the arbitration. On the contrary, the fact that the preliminary award dealt only with one of the three preliminary issues raised by the applicant, and even then did not finally decide all aspects of that issue, highlights the risk of fragmented proceedings if we were to decide the issue raised on this application now, and strongly militates against our doing so. . Cura v. Aviva Insurance Canada
In Cura v. Aviva Insurance Canada (Div Ct, 2021) the Divisional Court engaged in an extended praise of prematurity as a doctrine, both in the appeal and the judicial review (which this one was) context:[1] Litigants, whether they are before an arbitrator or a trial judge must, absent exceptional circumstances, proceed with their litigation to its ultimate conclusion before anyone aggrieved with an interim ruling or order initiates an appeal or an application for judicial review. There is good reason for this proposition. Numerous decisions are made by arbitrators and trial judges during the course of a hearing. Many of these decisions the parties may not agree with. Litigation in general would come to a grinding halt if an aggrieved litigant sought redress in a higher court every time he or she lost an argument during a trial or arbitration. This application for judicial review should serve as a reminder to heed this basic direction.
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[30] It is a fundamental principle of our legal system as it relates to both litigation before the LAT and similar tribunals, as well as trials in our court system, that decisions made during the course of a proceeding are not subject to judicial review or an appeal until such time as the process itself is complete. This principle is well understood and reflected in the decision of the Court of Appeal in Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 69, where the Court of Appeal adopted the rationale for this principle set forth by Stratas J.A. in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, as follows:Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a review in court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. . Coughlin v. Director, Ontario Disability Support Program
In Coughlin v. Director, Ontario Disability Support Program (Div Ct, 2021) the Divisional Court considered the doctrine of prematurity in the context of an appeal from an interlocutory order from the Social Benefits Tribunal:[7] In my view, Hendrickson does not assist in determining the scope of the right to appeal in s. 31(1) of the Act. It is a case that arose in the civil context to determine statutory lines of appeal for orders that are either final or interlocutory (see The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640 (Div. Ct.) at paras. 14, 16).
[8] In the administrative law context, the courts have applied the doctrine of prematurity, both in appeals and applications for judicial review, and refused to review preliminary decisions of administrative tribunals in order to prevent fragmentation of the administrative process and delay. Three of many examples where this has occurred in Ontario, in the context of a statutory appeal, are Roosma v. Ford Motor Co. of Canada Ltd., 1998 CanLII 5633 (ON SCDC) at para. 30, Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.) at para. 19, and Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (Div. Ct.) at para. 20. It is instructive to quote the words of Marrocco A.C.J.S.C. in Taylor at para. 19:The fact that both an appeal and a request for reconsideration can proceed at the same time is, however, subject to the jurisprudence of this court. This court is reluctant to hear appeals from interim or interlocutory orders of administrative decision makers for the same reason that it is reluctant to hear judicial review proceedings before the administrative decision-making process has ended. Such appeals fragment the administrative proceeding and increase costs. Accordingly, courts have interpreted language that grants an appeal from a “decision or order” of a board or tribunal as limited to an appeal of a final order (see, for example, Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON SCDC), 66 O.R. (2d) 18 (Div. Ct.), at para. 26; and Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819, 285 O.A.C. 218 (Div. Ct.), at paras. 72-73). If a proceeding is “fatally flawed”, an interim or interlocutory decision might be challenged. However, at such a hearing, prematurity may still be raised by the opposing party, and the court may refuse to hear the matter (see, for example, Deutsche Bank Securities Limited v. Ontario Securities Commission, 2012 ONSC 1576, 295 O.A.C. 1 (Div. Ct.)). [9] In the present case, the Act does not include the word “final” before “decision” in s. 31(1). However, the administrative law jurisprudence suggests that the right of appeal is only from a final determination of the merits by the administrative tribunal whose decision is challenged.
[10] Such an interpretation is also consistent with the wording of s. 71(1) of the Regulation. The record of the appeal is to include the “final” decision, as well as any preliminary decisions. While the appellant suggests that the regulation cannot restrict the scope of the statutory right of appeal, the regulation does not purport to do so. The prescribed requirements for the record are consistent with an interpretation of s. 31(1) as permitting appeals only after a full determination of the merits.
[11] Such an interpretation is also consistent with the policy of the Act, which sets out an administrative scheme for the review and appeal of orders that is meant to be expeditious (see Walsh v. Ontario (Disability Support Program), 2012 ONCA 463 at para. 77). To allow appeals of preliminary decisions would result in fragmentation of the administrative process and cause delay. . Di Geso v.Pascoe
In Di Geso v.Pascoe (Div Ct, 2020) the Divisional Court held that a motion for leave to appeal was premature when the proceedings below had not yet been fully resolved. Similar reasoning would apply to an appeal where leave wasn't required, and would probably has been dealt with under the much-vexed issue of interlocutory versus final decisions:[5] The administrative decision-making process has not ended. To proceed with the leave to appeal at this stage would fragment the TLAB proceeding, and lead to a misallocation of court time and the resources of the parties. Stratas, J.A. in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, at paras. 31-32 has expressed the court’s concerns in the context of judicial review:Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]
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