Court File and Parties
DIVISIONAL COURT FILE NO.: 301/24
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: TRADERS GENERAL INSURANCE COMPANY, Moving Party
AND:
SHELLEY RUMBALL AND LICENCE APPEAL TRIBUNAL, Respondents
BEFORE: Matheson J.
COUNSEL: Eric K. Grossman and Rebecca J. Brown Greer, for the Moving Party
A. Fabio Longo and Bryan Fromstein, for the Respondent Shelley Rumball
Morgana Kellythorne, for the Licence Appeal Tribunal
HEARD at Toronto: September 11, 2024, by video-conference
Endorsement
[1]
Background
The moving party seeks an extension of time to commence an application for judicial review from the preliminary issue decision of the Licence Appeal Tribunal (LAT) dated Feb. 5, 2018 (the Decision) and the related reconsideration decision dated May 8, 2019, which formed part of the process giving rise to the final LAT decision dated July 24, 2020 (the Final LAT Decision).
2The LAT had ruled that the respondent Shelley Rumball’s application for income replacement benefits (IRBs) was not barred by the two-year limitation period under the Statutory Accident Benefits Schedule (SABS). In the Final LAT Decision, Ms. Rumball was awarded IRBs for part of the time claimed – what is known as pre-104 IRBs – but was denied post-104 IRBs.
3Since a judicial review of the interlocutory decisions would have been premature, in addition to other potential obstacles, all parties have focused on the date of the Final LAT Decision. As of that decision in 2020, a judicial review had to be commenced within 30-days, as set out in s. 5 of the Judicial Review Procedure Act, R.S.O. 1990, c. 11. There was no prescribed time period prior to 2020.
4The moving party therefore needs an extension of time, which may be provided under s. 5(2) of the Act. This motion was brought and a preliminary issue was raised about the affidavit delivered in support of this motion as containing problematic statements such as argument. I have disregarded the contentious contents of that affidavit.
5This motion arises in highly unusual circumstances. The Final LAT Decision was the subject of an appeal and cross-appeal to this Court.1 The limitation period issue was the subject of the appeal and was dismissed because it was not a question of law. It was a question of mixed fact and law. There was therefore no right of appeal. The cross-appeal related to the denial of post-104 IRBs. It was also dismissed. The Court of Appeal denied leave from the decision on the appeal but granted leave from the decision on the cross-appeal. Upon being advised of this motion, the Court of Appeal vacated the hearing date regarding the cross-appeal pending these proceedings.
[6]
Analysis
Under s. 5(2) of the Act, I may grant an extension of time if I am satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result due to the delay. The length of the delay and explanation for the delay are also relevant considerations: Unifor v. Scepter Canada Inc., 2022 ONSC 5683 (Div. Ct.), at para. 18.
7The moving party relies on Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, to explain the timing of the proposed application for judicial review. The moving party submits that prior to this decision, released in March 2024, it would have had to meet a high hurdle to pursue judicial review. The moving party moved promptly after the above decision to bring this motion.
8The recent decision in Yatar is a relevant consideration on this motion but it is not determinative.
9On the apparent grounds for relief, the moving party submits that the prior appeal does not undermine the merits because this Court found the appeal on this issue was not a question of law. It therefore did not address the issues. There is some obiter in that decision that I have considered but the decision was that there was no right of appeal. The moving party submits that it is plain on the face of the termination letter that it was clear and unequivocal. The moving party submits that once the letter is reasonably interpreted, settled Court of Appeal jurisprudence will determine the limitation issue in its favour. I need not conclude that these apparent grounds of relief have a strong chance of succeeding.
10On the issue of prejudice, the moving party submits that it has both paid Ms. Rumball all the IRBs that were already awarded by the LAT and has agreed not to claim them back if successful. The moving party’s focus is on not paying any more IRBs, which brings the outstanding Court of Appeal proceedings into consideration. If the limitation period ruling is overturned, that appeal becomes moot. Ms. Rumball submits that is prejudicial to her. However, should that transpire it would mean that there would be no legal entitlement to the post-104 IRBs. I have also considered the implied prejudice that arises from the passage of time, but it is diluted by the ongoing proceedings in the Court of Appeal.
11I agree with the submissions of LAT that finality is a central principle in the administration of justice and a compelling consideration in assessing prejudice. Moving party’s counsel fairly conceded that the recent decision in Yatar is not enough and, on prejudice, emphasized that in this unusual case the issues are still live issues between the parties.
12This is an unusual case. Without the outstanding appeal hearing at the Court of Appeal, arising from the same Final LAT Decision and about the same benefits (IRBs), I would not grant the motion.
[13]
Disposition
I have considered all relevant factors in the exercise of my discretion. This motion is granted, on terms. The application shall be expedited. The moving party shall, within one week from today, serve and file the notice of application and provide (in the Intake Form) the proposed, expedited, schedule for the exchange of court materials that includes input from the other parties. The Intake Form shall reference this decision and request that the proposed schedule be drawn to my immediate attention for expedited scheduling. Costs shall be fixed at $4,500, all inclusive, to be paid to the moving party in the cause of the application.
Matheson J.
Date: September 16, 2024