CITATION: Ladouceur v. Intact Insurance Company, 2022 ONSC 5206

DIVISIONAL COURT FILE NO.: DC-21-2641

DATE: 2022-09-14

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: ROBBIN LADOUCEUR by her litigation guardian, robert ladouceur, Applicant

AND

intact insurance CoMpany and Licence appeal Tribunal, Respondents

BEFORE: Justices Aston, Swinton and Sheard

COUNSEL: Gregory C. Gilhooly, for the Applicant Jason H. Goodman and Erica F. Lewin, for Intact Insurance Company (Respondent) Valerie Crystal, for the Licence Appeal Tribunal (Respondent)

HEARD AT Ottawa (by videoconference): September 12, 2022

ENDORSEMENT

[1] The applicant brought an application for judicial review of a decision of the Licence Appeal Tribunal (the “Tribunal”) dated July 30, 2020 and a subsequent reconsideration decision dated April 7, 2021. After hearing oral submissions, the Court exercised its discretion to refuse to hear the application on the merits, with reasons to follow. These are our reasons.

[2] The applicant was injured in a motor vehicle accident on April 27, 2013. The respondent Intact Insurance Company denied her claim for Non-Earner Benefits (“NEBs”) in late November 2014. After the applicant’s father was appointed her litigation guardian in 2019, an amended application was made to the Tribunal on October 9, 2019 that sought review of the insurer’s denial of NEBs. This application was brought outside the two-year limitation period to bring a claim set out in s. 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.

[3] The Tribunal has the discretion to extend time periods pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (“LAT Act”) where there are reasonable grounds to do so. The Tribunal refused to exercise its discretion to extend time and refused reconsideration of its decision.

[4] The LAT Act provides a right to appeal a decision of the Tribunal under the Insurance Act only on a question of law (s. 11(6)).

[5] The applicant did not appeal to the Divisional Court. Her counsel explained that she sought judicial review because her application raises issues of mixed fact and law.

[6] Judicial review is a discretionary remedy. Where an applicant has an adequate alternative remedy, the court may exercise its discretion to refuse judicial review (Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 at paras. 37, 41-44).

[7] Given the legislative regime, which provides for an appeal from a decision of LAT under the Insurance Act only on a question of law, as well as the right to seek reconsideration of the decision by the Tribunal, this Court will consider an application for judicial review of a LAT decision under the Insurance Act only in rare circumstances. As the Court of Appeal stated in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 at para. 45,

… the Divisional Court correctly interpreted the legislative scheme as evincing an intention to limit recourse to the courts. It is inconsistent with the legislature’s decision to limit the right of appeal to questions of law alone to then hold that the remedy of judicial review is all‑encompassing. Rather, I agree with the Divisional Court’s approach, which essentially concluded that judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case. What constitutes such a rare case is for the Divisional Court to determine on a case-by-case basis.

[8] At para. 47, the Court of Appeal also stated,

… It remains true that it will only be a rare case where the remedy of judicial review will be properly resorted to, given the alternative remedies that are available to an unsuccessful party. Those alternative remedies will be, in the vast majority of cases, “adequate in all the circumstances to address the applicant’s grievance”: Strickland, at para. 42.

[9] In our view, the applicant has not demonstrated that this is one of those rare or unusual cases where the Court should exercise its discretion to hear this application for judicial review in order to prevent an injustice. The heart of the applicant’s argument was that the 2019 opinion of the applicant’s expert, Dr. Sarazin, provided key evidence of the applicant’s mental incapacity during the limitation period, which was not contradicted by other expert evidence. However, the record shows that there was extensive medical evidence about the applicant’s mental status in 2015 and 2016 and subsequent years, and it was open to the Tribunal to weigh that contemporaneous medical evidence and other evidence, and to conclude that Dr. Sarazin’s opinion was not uncontradicted, definitive or persuasive.

[10] As this Court said in Tipping v. Coseco Insurance Company, 2021 ONSC 5295 at para. 39, a decision rendered prior to the Court of Appeal’s decision in Yatar:

In this case, the mere fact that Mr. Tipping may not be able to appeal the LAT’s findings of fact or findings of mixed fact and law is not an exceptional circumstance. Rather, precluding Mr. Tipping from proceeding with his application for judicial review on these issues is respectful of the legislature’s intention to limit the courts’ interference with LAT decisions to questions of law alone.

[11] Accordingly, we refused to hear this application on its merits, and the application for judicial review is dismissed. As agreed by the parties, the applicant shall pay costs of $5,000 to the respondent Intact Insurance Company.

Aston J.

Swinton J.

Sheard J.

Released: September 14, 2022