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Reasons - None Given. Mann-Bentley v. North Kent Mutual Insurance Co.
In Mann-Bentley v. North Kent Mutual Insurance Co. (Div Court, 2024) the Divisional Court dismisses a JR by the insured against an Insurance Act (IA) s.128 umpire appraisal award, here regarding a fire claim.
Here the court considered the JR approach where few or no 'reasons for decision' are provided, here by the s.128 umpire:[14] In Laporte (Div. Ct.), at para. 28, D. Edwards J. cited the Supreme Court’s guidance on how to approach on appeal where no reasons are required or given:There will nonetheless be situations in which no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision. In such a case, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape: Vavilov, at para. 138. [15] Accordingly, appraisal awards should generally be afforded significant deference.
THE APPRAISAL AWARD
[16] The umpire’s award is very short. He clearly preferred the insurer’s appraiser’s opinion on the size of the cottage but did not provide any reasons stating why.
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PRELIMINARY EVIDENTIARY ISSUE
[20] Where an umpire does not give reasons, it is appropriate to re-create the record of what was before the umpire, as the parties did here. The applicant, however, argued that the Court should ignore appraiser Valeriote’s 10 April 2024 affidavit. Alternately, she argues that we should ignore paragraphs 6-13, 15-22, and 25-31 of that affidavit. She gives two bases for this submission: 1) it was late filed, and 2) it contains evidence that is not properly before the Court, namely, information Mr. Valeriote received from others, but which Mr. Valeriote does not say he believes is true. Further, that evidence is not on non-controversial matters and violates r. 39.01(5).
[21] We accept the 10 April Affidavit as it contains necessary information such as emails and Mr. Valeriote’s memory, which clarifies evidence arising out of the affidavits filed before 10 April, and to understand what transpired at the appraisal hearing. The applicant does not argue that this information in it is not true nor did she seek an adjournment to consider and respond to it. To exclude that affidavit in its entirety would allow form to triumph over substance.
[22] We accept the applicant’s position, however, that those portions of the 10 April affidavit which are on information and belief are improper as those portions of the affidavit do not deal with non-controversial matters. We have ignored them. Even had we excluded the affidavit in its entirety, the outcome of this application would have remained the same. . Mammarella v. Ontario College of Teachers
In Mammarella v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered a JR of a tribunal 'rule change' (not of a specific case decision), here of the 'Rules of Procedure of the Discipline and Fitness to Practise Committee' of the Ontario College of Teachers relating to third party evidence disclosure.
Here the court addresses an 'inadequate reasons' JR argument against the Rule change:[11] ... The applicant relies on the absence of reasons for the Committees’ decision to change the rule. The applicant further challenges the memorandum put forward to the Committees in support of the then proposed change.
[12] As noted in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 136, formal reasons are not necessarily required. The applicant has not shown that they were required in this instance. Where formal reasons have not been provided, the reviewing court looks at the record as a whole to understand the decision: Vavilov, at para. 137. The memorandum put forward in support of the proposed change is relevant context. It noted that the prior rules were sparse, that the R. v. O’Connor test had been applied, discussed the test in R. v. Mills, noted that it was intended to counter improper stereotypes about sexual assault victims, and noted that the Regulated Health Professions Act had already codified the R. v. Mills regime and other regulators had also done so. . Freeman’s Service Centre Ltd. v. Modern Auto Parts Limited
In Freeman’s Service Centre Ltd. v. Modern Auto Parts Limited (Ont CA, 2023) the Court of Appeal dismissed an inadequate 'reasons for decision' appeal, even though the motion judge (in an unopposed motion) issued no reasons at all (apparently not even oral reasons):[4] The Cedarholme Defendants seek to set aside the Order primarily on the basis that the motion judge failed to give any reasons for his decision. While the motion judge did not give any reasons for the Order made on an unopposed basket motion, the record clearly discloses the basis upon which it was made: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 37 and 46; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 70-71.
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[6] In our view, the record clearly discloses the reason why Broad J. struck out the Cedarholme Defendants’ pleading: notwithstanding the multiple opportunities they were given to answer undertakings, they failed to file any materials in response to Freeman’s motion to strike and failed to provide answers to the remaining undertakings. The Cedarholme Defendants were treated fairly during this process but failed to avail themselves of the opportunities given to them by the court to satisfy their undertaking obligations and to respond to Freeman’s motion. Striking out the Cedarholme Defendants’ pleading for their default was a remedy available to the motion judge in the circumstances.
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