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Insurance - Appeals - Standard of Review (SOR). Jiang v. The Co-operators General Insurance Company
In Jiang v. The Co-operators General Insurance Company (Div Court, 2024) the Divisional Court considered two appeals (one a reconsideration) of LAT SABS rulings, here in the unusual context of a driver being assaulted by a passenger.
Here the court considers that a Divisional Court appeal from LAT rulings are on 'questions of law' only [LATA S.11], which attract a 'correctness' SOR:
[19] Under the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, ss. 11(1) and 11(6), the Divisional Court has jurisdiction to hear this appeal on a question of law only.
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[21] The Supreme Court of Canada wrote in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (S.C.C.) at paragraph 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: Dunsmuir, at para. 50. 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. [22] The Supreme Court instructs us that the tribunal is presumed to know the law with which they work, day in and day out[5] and an appellate court must take care not to substitute its own view of the facts for that of the trial judge or in this case, the Tribunal.[6] . SIR Corp. v. Aviva Insurance Company of Canada
In SIR Corp. v. Aviva Insurance Company of Canada (Ont CA, 2023) the Court of Appeal considers a business insurance policy that the insured claimed was triggered by provincial EMCPA COVID orders.
In these quotes, the court considers the appellate SOR for contracts - both standard form and customized, here in an insurance policy context:(1) Standard of review
[33] As a general rule, contractual interpretation is a question of mixed fact and law subject to deferential review on appeal: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24. An exception to that rule has been recognized by the Supreme Court of Canada in Ledcor, at para. 24:[W]here an appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to correctness review. [34] In this case, that exception does not apply. This is a broker-worded manuscript policy, not a standard form agreement, and there is a meaningful factual matrix specific to the parties.
[35] Accordingly, it is not open for this court to intervene unless the application judge made a palpable and overriding error in her interpretation of the Policy or an extricable error of law, in which case the standard of review is correctness: Sattva, at para. 53; Ledcor, at para. 21.
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