CITATION: Mekdes Kahissay v. Insurance, 2023 ONSC 3650
DIVISIONAL COURT FILE NO.: 22/385, 22/476 DATE: 20230615
ONTARIO SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT
IN THE MATTER OF AN APPLICATION PURSUANT TO THE JUDICIAL REVIEW PROCEDURE ACT, R.S.O 1990, Chapter J.I
Sachs, Sutherland, Schabas JJ.
BETWEEN:
Mekdes Kahissay
Richard Campbell, for the Applicant
Applicant
– and –
Maya Krishnaratne & Callum Micucci
Intact Insurance
for Intact Insurance
Megan Peck and Valerie Crystal, for
Tribunals Ontario
Respondent
AND BETWEEN:
Ismet Ibrahim
Richard Campbell, for the Applicant
Applicant
– and –
Intact Insurance
Jefferey Naganobu, for Intact Insurance
Megan Peck and Valerie Crystal, for
Tribunals Ontario
Defendant/Respondent
HEARD at Toronto: June 15, 2023
ENDORSEMENT
Schabas J. (Orally)
[1] The applicants seek judicial review of interlocutory orders staying proceedings before the License Appeal Tribunal (“LAT”) which they have brought to establish catastrophic impairment.
[2] The insurer in both cases failed to comply with the requirements of the Statutory Accidents Benefits (“SABs”) rules which would have required the applicants to submit to medical examinations by the insurers, or “IEs.” Nevertheless, the LAT held in the Kahissay matter that it was “in the interest of procedural fairness” to stay the application for 120 days so that the applicant could attend “reasonable and necessary catastrophic IEs.” Similar reasoning was given in the Ibrahim matter in issuing a stay in virtually identical terms.
[3] The applicant in Kahisssay initially sought to appeal the stay ruling but, as the ruling was acknowledged to be interlocutory, Corbett J. permitted the proceeding to be converted to a judicial review. This was done without prejudice to the submission that the application was premature: see Kahissay v. Intact Insurance, 2022 ONSC 6357. Both matters have now come before us, in which both the insurer and the LAT submit the applications are premature.
[4] We agree that the applications are premature.
[5] As the Court of Appeal stated in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 68:
“…unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.”
[6] This principle respects administrative decision-making and prevents fragmentation, delay and additional costs. It allows the administrative process, often before a tribunal with expertise and experience in the area, to proceed while preserving the right of the court to intervene in exceptional circumstances and, of course, at the end of the process when the court will have the benefit of the tribunal’s findings and reasons which, to quote Stratas J.A. in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] F.C.R. 2332, at para. 32, “may be suffused with expertise, legitimate policy judgments and valuable regulatory experience.”
[7] We are not satisfied that these applications meet the very high bar of exceptional circumstances. As Stratas J.A. stated in CB Powell at para 33:
“Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This is shown by the narrowness of the "exceptional circumstances" exception .... Suffice to say, the authorities show that very few circumstances qualify as "exceptional" and the threshold for exceptionality is high .... Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted ....”
[8] In this case the applicants raise a jurisdictional issue as to whether the LAT can issue a stay in these circumstances. However, even jurisdictional issues do not raise exceptional circumstances. As this Court has held in Lourenco v. Hegedus, 2017 ONSC 3872 at para 6, early judicial review "is the exception, not the rule, and will only be permitted in rare cases where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceedings without interruption until their conclusion".
[9] The applicants argue that the effect of the stay orders requires them to either undergo IEs or, possibly, have their proceedings stayed permanently. Even if this is true, comparable consequences arise in other cases. For example, interlocutory appeals are not permitted in cases where a party in a regulatory proceeding, or a trial, is required to address the merits of a proceeding even though they take the position, for example, that the tribunal or judge has wrongly allowed a proceeding to continue when it was unreasonably delayed or is an abuse of process, or in cases where evidence has been admitted which is argued to have been improperly obtained or in breach of the Charter and ought to have been excluded.
[10] Accordingly, these applications do not raise exceptional circumstances justifying a departure from the very strong rule against reviewing interlocutory orders of regulatory tribunals.
[11] Pursuant to the agreement of the parties, the applicants shall pay to the respondents in each proceeding the sum of $5500 by way of costs, and the LAT does not seek costs.
_____________ Schabas J.
I agree
___________________________ Sachs J.
I agree
Sutherland J.
Date of Reasons for Judgment: June 15, 2023
Date of Release: June 19, 2023
CITATION: Mekdes Kahissay v. Insurance and Ismet Ibrahim v. Intact Insurance, 2023 ONSC 3650
DIVISIONAL COURT FILE NO.: 22/385 & 22/476 DATE: 20230615
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Sutherland, Schabas JJ.
BETWEEN:
Mekdes Kahissay
Applicant
(Applicant before the License Appeal Tribunal)
– and –
Intact Insurance
Respondent
(Respondent before the License Appeal Tribunal)
BETWEEN:
Ismet Ibrahim
Applicant
(Applicant before the License Appeal Tribunal)
– and –
Intact Insurance
Respondent
(Respondent before the License Appeal Tribunal)
ORAL REASONS FOR JUDGMENT
Schabas J.
Date of Reasons for Judgment: June 15, 2023
Date of Release: June 19, 2023