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Insurance (Auto) - Appeal (Divisional Court). Vivekanantham v. Certas Direct Insurance Company
In Vivekanantham v. Certas Direct Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the issues were "a special award under s. 10 of Regulation 664 [SS: "Reg 664/90 Automobile Insurance, s.10 Dispute Resolution (Section 280 of the Act)"] and that the LAT breached procedural fairness when it admitted and relied on the report of Dr. Sivasubramanian in spite of the fact that he refused to attend the hearing and be cross-examined".
In this quote the court considered available appellate remedies, here drawn from Vavilov:[28] In applying the correctness standard, the court is free to replace the opinion of the tribunal with its own. However, the starting point remains the reasons provided by the LAT for its interpretation of the law. As stated in Canada (Minister of Citizenship of Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 54:When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view. While it should take the administrative decision maker’s reasoning into account – and, indeed, it may find that reasoning persuasive and adopt it – the reviewing court is ultimately empowered to come to its own conclusions on the question (cites omitted). [29] In this case neither the Hearing Decision nor the Reconsideration Decision contains any reasoning regarding the proper interpretation of s. 10. However, other LAT decisions have considered this question and their reasoning will be a starting point for my correctness analysis. . Luluquisin v. Aviva Insurance Co. of Canada
In Luluquisin v. Aviva Insurance Co. of Canada (Div Court, 2024) the Divisional Court allowed a claimant's LAT SABS appeal, here setting out the SOR to be applied at the Divisional Court:Jurisdiction and Standard of Review
[5] Pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, SO 1999, c. 12, Sched. G (the “Act”), this court has jurisdiction over this appeal. As in this case, pursuant to s. 11(6) of the Act, an appeal to this court from the LAT relating to a matter under the Insurance Act, RSO 1990, c. I.8, may be made on a question of law only.
[6] The standard of review for questions of law arising on a statutory appeal is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653; Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235. Issues of procedural fairness are decided on a correctness standard: Abrametz v. Law Society of Saskatchewan, 2022 SCC 29, 470 DLR (4th) 328. “The application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle… can be characterized as an error of law”: Housen v. Nikolaisen, at para. 36.
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