Court weighs whether judicial review application can proceed if there is statutory right of appeal
In a recent case involving an automobile accident, the Divisional Court urged the applicant and his lawyer to stop relentlessly focusing on peripheral issues in lieu of the core issue of the applicant’s potentially legitimate entitlement to significant accident benefits.
In Tipping v. Coseco Insurance Company, 2021 ONSC 5295, the applicant, insured by the respondent insurance company, was riding a car that was traveling on a highway when it was hit at high speed. The applicant sought catastrophic injury benefits, claiming that he sustained a traumatic brain injury and other serious injuries that stopped him from working at his former job.
The applicant initiated an application with the Licence Appeal Tribunal to assail the insurer’s decision denying his application for a determination of catastrophic impairment. Ahead of the hearing, the insurer asked the applicant to undergo a few examinations, including a neuropsychological assessment, which ended up being cancelled before it could take place, following a long and convoluted dispute between the insurer and the applicant’s counsel.
The adjudicator granted the insurer’s preliminary motion seeking to bar the applicant from proceeding with an appeal to the tribunal on the basis of his failure to attend the assessment and to submit documents prior to such medical examination.
Two days afterward, the applicant’s lawyer wrote the adjudicator a letter that claimed not to be a reconsideration request. The letter asked the adjudicator to declare his decision invalid due to numerous errors and to recuse himself for reasonable apprehension of bias. When the tribunal advised the applicant’s counsel that it would deem the letter a request for reconsideration, the lawyer sent a long submission requesting a reconsideration of the decision to treat his letter as a reconsideration request.
The tribunal’s reconsideration decision upheld the original ruling. The adjudicator accepted that he factually erred in stating that the applicant had failed to attend the insurer’s neuropsychological assessment, considering that these examinations had been cancelled before the scheduled dates. However, the adjudicator concluded that this error was insufficient to affect the outcome of the case, given that the applicant also fell short of his obligations to comply with certain notices and to submit certain documents.
The Ontario Divisional Court dismissed the applicant’s application for judicial review of the adjudicator’s decision and reconsideration decision, with costs of $10,000 in favour of the insurer. The court found that the applicant had failed to exhaust his right of appeal and to provide evidence of reasonable apprehension of bias.
Because the case did not establish exceptional circumstances to justify the court’s interference on an application for judicial review, which is a discretionary remedy, the appropriate remedy was to appeal to the Divisional Court on questions of law alone under s. 11(1) of the Licence Appeal Tribunal Act, 1990, the court said. In this case, the dispute revolved around questions of mixed fact and law, for which there was no right of appeal from the tribunal to the Divisional Court.
The court did not treat as an exceptional circumstance the fact that the applicant might not be able to appeal the tribunal’s findings of fact or of mixed fact and law. Rather, preventing the applicant from proceeding with this application would be in line with the legislature’s intention to confine court interference with the tribunal’s decisions to questions of law.
