CITATION: Khan v. Allstate, 2024 ONSC 4468

DIVISIONAL COURT FILE NO.: 187/24

DATE: 20240815

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: TIMUR KHAN

Applicant/Moving Party

AND:

ALLSTATE INSURANCE COMPANY and THE LICENCE APPEAL TRIBUNAL

Respondents/Responding Parties

BEFORE: Justice O’Brien

COUNSEL: J. Campisi and A. Ismail, Counsel for the Applicant/Moving Party

P. Yoo, Counsel for the Respondent/Responding Party, Allstate Insurance Company

M. Kellythorne and D. Lee, Counsel for the Respondent/Responding Party, Licence Appeal Tribunal

HEARD: Motion in-writing

ENDORSEMENT

Overview

[1] The moving party, Mr. Khan, seeks an extension of time to file a notice of application to judicially review a September 19, 2022 decision of the Licence Appeal Tribunal and the February 3, 2023 reconsideration decision. The decisions relate to the denial of benefits by the respondent Allstate Insurance Company arising from a motor vehicle accident in 2017.

[2] Mr. Khan initiated both an appeal and an application for judicial review of the Tribunal decisions on March 7, 2023 but states he subsequently discontinued the application because of an adverse costs award in another case in which the court relied on the Court of Appeal decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446. Yatar was subsequently reversed by the Supreme Court of Canada: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. Whereas the Court of Appeal had stated, given the existing statutory right of appeal, judicial review was reserved for “rare cases,” the Supreme Court concluded a person has a right to seek judicial review in spite of the statutory right of appeal.

[3] Mr. Khan’s appeal from the Tribunal decisions was heard and dismissed by this court in June 2023 and leave to appeal from that decision was refused by the Court of Appeal.

[4] Mr. Khan submits the extension should be granted because: (1) There are apparent grounds for relief. He relies on submissions related to the Tribunal’s analysis of causation and on what he says is new evidence of institutional bias that prejudiced his hearing at the Tribunal; and (2) The respondent has not experienced prejudice caused by the delay.

[5] For the following reasons, the motion is dismissed.

Analysis

[6] Subsection 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 requires an applicant to file an application for judicial review within 30 days of the decision. Subsection 5(2) authorizes the court to extend this time “if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.” In considering whether an extension of time should be granted, it may also be relevant for the court to consider the length of the delay and any explanation offered for it: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 (Div. Ct.), at paras. 17-18.

A. Apparent Grounds of Relief

[7] Mr. Khan submits the apparent grounds for relief are (1) errors of mixed fact and law in the Tribunal’s conclusions on causation; and (2) the emergence of evidence revealing institutional bias within the Tribunal, which he says is primarily an issue of fact.

[8] On the question of causation, he submits the Tribunal’s decision hinged on the fall Mr. Khan suffered two weeks after the relevant motor vehicle accident. The Tribunal found the fall severed the chain of causation. Mr. Khan submits the Tribunal denied him procedural fairness by relying on the fall even though the insurer had not raised it as a reason to deny his benefits.

[9] To establish apparent grounds for relief, Mr. Khan need not show his application would be successful. But he must show some merit to his application. This ground of review has no merit. It has already been decided by this court on appeal.

[10] In its decision, this court squarely dismissed the submission that Mr. Khan suffered procedural unfairness because he did not have notice of the respondent’s position on causation until the hearing. The court dismissed the argument because Mr. Khan had not raised it before the Tribunal and could not raise it for the first time on appeal. It concluded Mr. Khan’s failure to raise his concern before the Tribunal “deprived the court of the evidence necessary to establish how the LAT would have in fact dealt with the concern”: Khan v. Allstate Insurance Company, 2023 ONSC 3652, at para. 27. Mr. Khan has not established any different argument on judicial review that would distinguish it from the conclusion of this court on appeal.

[11] Mr. Khan also contends the Tribunal made a factual error in assessing the evidence of his fall and concluding it was unrelated to the motor vehicle accident. The standard of review for the Tribunal’s decision is reasonableness. In applying that standard, reviewing courts are expected to refrain from reweighing and reassessing evidence. The Court of Appeal has said that “absent exceptional circumstances, a reviewing court will not interfere with the [decision maker’s] factual findings”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 125.

[12] Mr. Khan has made general references to the evidence before the Tribunal without citing any specific item of evidence. He has not pointed to any compelling reason this court would interfere with the Tribunal’s factual findings, which, as he acknowledged, involved the weighing of complex evidence from multiple experts. There is no apparent merit to this ground of review.

[13] With respect to institutional bias, Mr. Khan submits he has evidence to challenge the presumed impartiality of the adjudicators who rendered the Tribunal decisions. In an unrelated Tribunal case where this issue was raised, the Tribunal ordered the partial destruction of the alleged evidence of the Tribunal’s institutional bias. That decision is under review in this court. Mr. Khan states the relevant evidence is subject to a sealing order.

[14] These allegations do not provide any apparent grounds for relief. Bias is difficult to establish. There is a presumption that decision-makers will act in an impartial manner. Mr. Khan alleges broader institutional bias, but it is not enough to rely on bare and generic allegations. Although the relevant evidence is sealed, this would not have prevented Mr. Khan from providing some information as to the nature of his allegations and how they pertain to this case. Mr. Khan has not provided any specifics that would allow the respondent to respond nor allow the court to assess the strength of his allegations in the context of this case. This is insufficient to establish apparent grounds for relief.

B. Prejudice and Length of the Delay

[15] The length of the delay also weighs against granting an extension of time. I acknowledge that Mr. Khan acted promptly after the release of the Supreme court’s decision in Yatar. On the other hand, he filed this motion not only after a lengthy delay from the initial decisions, but after the respondent the appeal was dismissed. Mr. Khan filed this motion over a year after the Tribunal’s reconsideration decision and 18 months after the Tribunal’s initial decision. He had already withdrawn his first application for judicial review and the respondent already successfully defended the appeal in this court and motion for leave to appeal at the Court of Appeal.

[16] Although the respondent has not alleged specific prejudice arising from the delay, I accept the Tribunal’s submission that a relevant consideration is the principle of finality. This court has maintained that there comes a time when parties must be able to say “this matter has been decided.” This is the core of the finality principle, which is a central principle in the administration of justice: Mihundukulasuriya v. Aramark Food Services Ltd., 2022 ONSC 4563 (Div. Ct.), at para. 17; Marché D’Alimentation Denis Thériault Ltée v. Giant Stores Limited, 2007 ONCA 695, at para. 37.

[17] In the circumstances of this case, the length of delay and principle of finality are not determinative on their own, but they weigh against an extension of time.

Disposition

[18] Taking all the factors into consideration and especially the lack of any apparent grounds of relief, the court will not exercise its discretion to grant an extension. The motion therefore is dismissed.

[19] As agreed by the parties, Mr. Khan shall pay costs of $2,500 all-inclusive to the respondent Allstate Insurance Company.

O’Brien J

Date: August 15, 2024