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Appeals Of Tribunal Interlocutory Orders are Premature (2). Kahissay v. Intact Insurance
In Kahissay v. Intact Insurance (Div Court, 2022) the Divisional Court extensively considered an argument that appeal was allowed of a tribunal's (here, a SABS auto insurance arbitrator) interlocutory order:[2] By my direction, the Registrar issued a notice pursuant to Rule 2.1 that the court is considering dismissing the appeal on the following basis:It appears that the appeal concerns an interlocutory order of the LAT. As has been found recently in this court, the Divisional Court has no jurisdiction to hear an appeal from an interlocutory order of the LAT: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (“Penney”). [3] The appellant’s submissions in response to the R.2.1 notice are as follows:(a) there are two “lines of authority” in the Divisional Court. One, reflected by the decision of Marrocco ACJSCO in Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (“Taylor”), holds that an appeal from an interlocutory decision of the LAT is available in the Divisional Court, and the Divisional Court may intervene in respect to an interlocutory ruling of the LAT in “exceptional circumstances”. The other, reflected in the decision of Swinton J. in Penney, holds that there is no jurisdiction in the Divisional Court to hear an interlocutory appeal from the LAT.
(b) Taylor is correct and Penney is incorrect and, in any event, where there are two competing lines of authority in this court, the issue is not fit for decision by a single judge on a R.2.1 review and it should be placed before a panel of this court.
(c) in the alternative, this case fits within the “exceptional circumstances” category and the appellant should be granted leave to convert this appeal to an application for judicial review. [4] As is reflected in the reasons of Swinton J. in Penney, this court has long held that it has no jurisdiction to hear an appeal from an interlocutory order of the LAT. There is jurisdiction to intervene in respect to such an interlocutory decision by way of judicial review, but this jurisdiction is exercised sparingly so as not to fragment and delay administrative proceedings.
[5] The “contrary line of authority” has relied upon the “prematurity” principle used in judicial review to restrict recourse to appeals of interlocutory decisions to exceptional cases: Taylor and Micanovic v. Air Canada Ltd., 2022 ONSC 1566, at paras. 30, 32 and 33.
[6] The court in Taylor did not explain the basis of its jurisdiction and did not reference, distinguish or overrule prior jurisdictional decisions to the contrary. The authority it did rely upon was in the context of judicial review, not an appeal. Thus, Taylor can be said to have been decided per incuriam on the issue of jurisdiction. Other decisions taking a similar approach (including my own single-judge decision in The Personal Insurance Co. Ltd. v. Jia, 2020 ONSC 6361) followed the logic of Taylor without addressing the prior contrary authority on the issue of jurisdiction.
[7] Penney stands as a recent statement by a panel of this court on this issue. It is binding on me as a single judge deciding a R.2.1 issue. Further, given the history of this issue in this court, Penney can be taken as the authoritative statement of the Divisional Court on this issue: Taylor and Jia were both wrongly decided on this point – though I note that both Taylor and Jia are correct in the result – both appeals were dismissed for prematurity, though both should have been dismissed for lack of jurisdiction. Where one “line of authority” is correct on a point and another “line of authority” is incorrect and decided (on the point) per incuriam, a panel of this court may resolve the point authoritatively. No purpose would be served by sending the issue to another panel of this court: Penney has settled the issue. . 1386146 Ont. Inc. v. 2520650 Ont. Inc. et al.
In 1386146 Ont. Inc. v. 2520650 Ont. Inc. et al. (Div Court, 2022) the Divisional Court considered the appeal of an interlocutory order from the Local Planning Appeal Tribunal (LPAT) under the Aggregate Resources Act. In this quote the court relies on the inadequacy of fact-findings and reasons for the interlocutory order as justification for it's prematurity finding. Most interlocutory order 'prematurity' cases find prematurity only on the basis that the moving party 'may have won anyway' if the full tribunal process had been completed:[36] In this case, the Tribunal stated in its decision that the sole relevant policy consideration was the need to “manage the supply of aggregate resources in a manner that protects the public interest. The public interest matters that the Minister and the Tribunal must have regard to do not include the financial interests of the landowner or the licensee”. As seen earlier in this decision, the OMB previously held it had to consider financial compensation when dealing with licence transfers. In the case before the court, therefore, the Tribunal effectively reversed course regarding this policy and found that the financial positions of the transferor and the transferee were no longer relevant considerations. Given the reasons in Schneider and Maniplex, the Tribunal needed to explain why this policy changed. Without such reasons, this court cannot provide a meaningful appellant review policy.
[37] Further, I agree that the Tribunal has no explicit power to make recommendations under the Aggregate Act. However, the doctrine of necessary implication is such that, if the previous policy regarding financial compensation remains in effect, the Tribunal must consider that policy when determining whether it has the power to enforce said policy as a result of necessary implication as described in ATCO Gas & Pipeline Ltd. It may yet be that the financial interests affected by the transfer may not meet the threshold associated with the doctrine of necessary implication. Such a finding, however, is a separate inquiry from whether, as a matter of policy, the Tribunal is capable of considering the financial interests of the affected parties.
[38] Compounding this issue is the fact that the Tribunal has not made any substantive decision with regard to the licence in question. It may well be that the substantive decision will provide a factual basis to determine why the Tribunal ruled as it did on the jurisdictional question. In the absence of a substantive decision, however, a reviewing court is not in a position to determine whether the policy and factual balance achieved by the Tribunal is legally correct as per My Rosedale Neighbourhood.
[39] Therefore, the Tribunal’s apparent change in policy regarding the relevance of financial compensation, coupled with the absence of factual findings on the hearing proper, are such that it is impossible to determine at this time whether the Tribunal was correct in its jurisdictional decision.
CONCLUSION
[40] Accordingly, the appeal is dismissed as it is premature. The matter is hereby remitted back to the Tribunal to complete the matter without prejudice to the appellant’s ability to argue this ground of appeal once the entire matter is decided by the Tribunal. It is possible that this ground of appeal will ultimately fail. It is possible that this ground of appeal will succeed. Given this latter possibility, I encourage the Tribunal to determine an economic value for the aggregate licence irrespective of its jurisdictional holding in case it ultimately becomes a relevant consideration.
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